What is a Holdover Proceeding?
A landlord may bring a holdover proceeding in court when your tenancy has ended and you have
not moved from the premises. Your tenancy can end if your lease term has expired and the landlord
refuses to accept any more rent from you.
If you do not have a lease and your rent is due once a month, you have a “month-to-month tenancy”. The landlord can end your tenancy by giving you a proper written or oral notice which tells you that your tenancy will end on a specific date.
If you had a lease and it expired, but the landlord continued to accept rent, you have a month-to-month tenancy. If the landlord wants to terminate your tenancy, (s)he must give you the same notice required for a tenancy that never had a lease. See below for what constitutes a proper notice.
What constitutes a proper notice to terminate?
If you are a month-to-month tenant, a new rental term occurs each month. Under New York Law, a landlord can usually only end your tenancy by giving you one month’s notice. The date the tenancy ends must be the last day of the term and the notice must be received by you before the beginning of the next term.
When does my tenancy begin and when does it end?
The beginning of the term of your tenancy is usually the date your rent is due. The term ends on the day before the next time your rent is due. For example, if your rent is due on the first of each month, that is the beginning date of your rental term. The term would end on the last day of the month. If your rent is due on the 15th of the month, that is the beginning of your term. Your term would then end on the 14th day of the next month.
What if I pay rent on a weekly or bi-weekly basis and I do not have a lease?
If you pay rent once a week, your landlord only has to give you one week’s notice. If you pay rent every two weeks, then your landlord must only give you two weeks notice. However, the termination date must occur at the end of your term and you must receive notice before the beginning of the term. For example, if you pay rent for the week on Monday, your landlord must give you notice on or before Sunday to end your tenancy a week from the next Monday.
How must the notice to terminate be served on me?
The notice to terminate can be served in any manner. If the notice is written, it can be mailed, put in the mailbox, handed to you or put under your door.
However, the notice to terminate does not have to be written. The landlord can tell you that the tenancy will be ended on a certain date. He must follow the law regarding the termination date and the date he gives you notice (See “What Constitutes a Proper Notice” above).
What can my landlord do if I do not move out after he gives me the notice to terminate?
The landlord must still take you to court before you can be evicted legally. Only the court can decide that you are not entitled to live in the apartment. And only the Sheriff can evict you after the landlord has taken you to court and the court rules that you are not entitled to stay in the apartment.
How will I know that I have to go court?
You should be served with a written notice to appear in court. This is called a Notice of Petition. It will tell you the date and time to appear and the location of the court.
Attached to the “Notice of Petition” is a “Petition”. The Petition should explain the reasons why the landlord is taking you to court.
How do I know if the court papers I received were properly served?
There are three ways court papers can be served:
1. The papers can be given to you in person.
2. The papers can be given to someone who lives or works in your apartment. The person served with the papers cannot be a young child. If service is made on another person in your apartment, copies of the papers must be mailed to you both by regular or certified mail within ONE day of giving the papers to some who lives or works in your apartment.
Just because you do not pick the certified mail does mean that you were not properly served
3. If there were more than one attempt to serve you by methods “1″ or “2″, he can attach the papers to your door or put them under your door. Then he must mail them by regular or certified mail within ONE day of attaching the papers or putting them under your door.
What should I do if I was not properly served with the paper to appear in court?
If you were not served in accordance with any of the three methods described above and you know about the court date anyway, you should go to court and tell the Judge about the improper service. You will then have a hearing on that issue. If you can show you were not properly served, the case should be dismissed against you.
If I was properly served with the papers to appear in court, what should I do to prepare for court?
First, gather all documents you believe will help your case. These documents could include rent receipts, your written lease, the notice to terminate, pictures of bad conditions in your apartment or building or written reports of bad conditions at your premises.
If a government agency such as the building or health department has inspected your apartment and prepared a written report, you should request a “certified copy” of the report from the agency and bring it to court.
What happens when I go to court?
Court usually begins at 9:30 a.m. The court clerk begins calling the list of cases. When your case is called, tell the clerk that you are there and would like to speak with either the landlord or his/her lawyer.
If you have all your evidence with you, try talking to your landlord or your landlord’s attorney to see if you can settle your case on terms that you can live with. If you cannot settle the case and believe you have defenses to the case, tell the Judge you want to go to trial.
Right before the trial takes place briefly tell the Judge all your defenses to the case. Listed below are possible defenses to a holdover proceeding. For example, if there are bad conditions in your apartment or the landlord is trying to evict you because you made a complaint to a building or health department, tell that to the Judge. Make sure a court reporter is present and is taking notes when you speak.
Can I get an extension?
In Nassau and Suffolk, the judges will usually grant an adjournment for one week only. Contact Nassau suffolk Law Services for possible representation, or ask the clerk in court to identify one of our attorneys in court. There is a possibility we can represent if you are financially eligible and have a legal defense.
What is a Retaliatory Eviction?
If you have complained to a governmental agency about bad conditions in your apartment or have participated in a tenants’ association and your landlord gives you notice that he or she is terminating your tenancy, you may have the defense of retaliatory eviction.
Under what circumstances can I use the defense of Retaliatory Eviction?
If the landlord serves you with the notice of termination or brings you to court to evict you within 6 months of the date of your complaint to a governmental agency or your last participation in a tenant’s association, the law assumes that the landlord is acting to get even with you. When your landlord takes you to court, you should tell the Judge that the landlord is retaliating against you because of your actions. The landlord then has to show that he wants you out for another reason. If he or she cannot do that, you should win the case.
What kind of housing do I have to live in to use the defense of Retaliatory Eviction?
This defense applies to any housing except if your landlord lives there and there are less that 4 units. For example, if there are only 2 units where you rent and your landlord lives in one of them, you cannot use this defense.
Do I have any grounds to claim that the landlord is not entitled to late and legal fees?
In a landlord-tenant case, your landlord is only entitled to a money judgment for those items that really are rent. Under certain circumstances, your landlord will NOT be entitled to late and legal fees.
-if you never entered into a written lease, your landlord is not entitled to obtain late and legal fees, even if you orally agreed to pay these fees.
-if your written lease permits the landlord to get late and legal fees but there is nothing in your lease that calls late and legal fees “additional rent”, the landlord is NOT entitled to these fees.
-Section 8 leases do not permit legal and late fees.
It is important that you read your lease to determine if you have this defense
The information contained in this material is not legal advice. Legal advice depends upon the specific facts of each situation. Also, the law may vary from state to state, so that some information from our website may not be correct for your jurisdiction. Finally, this information is not guaranteed to be up to date. The material contained on this site cannot replace the advice of competent legal counsel licensed in your state.