What is a Non-Payment Proceeding?

Updated: Nov 3, 2020

This page outlines the rules that will apply after the current state of emergency is lifted.

Please refer to our COVID-19 resources for updates on temporary changes to these rules.

What is a Non-Payment Proceeding?

A landlord may bring a proceeding in court when you have not paid the rent. This is known as

a non-payment proceeding. The phrase “Non-payment” should appear on the papers informing you that you have to go to court.

What are some of the defenses I might have in a Non-Payment Proceeding?

There are several defenses to a non-payment proceeding. These include:

  • Failure of the landlord to demand the rent before bringing the proceeding;

  • Landlord’s breach of the warranty of habitability;

  • Constructive eviction;

  • Unilateral increase in rent;

  • The landlord claimed you owe rent for items that are not really rent.

What does the Defense of Demand mean?

The law requires the landlord to ask for the rent arrears before he can bring a non-payment proceeding. The landlord can personally ask you for the rent or he can serve you with a written notice at least 3 days before bringing the proceeding against you.

If the landlord gives me a written Notice of Demand, how should it be served?

A written demand must be served in the same manner as the court papers. That means there are three ways to serve it:

  1. The demand can be given to you personally.

  2. The demand can be given to someone who lives or works in your apartment. The person served with the demand cannot be a young child. If service is made this way, copies of the demand must be mailed to you both by regular or certified mail within ONE day of service of the demand on a person who lives and works in your apartment. Just because you do not pick up the certified mail does not mean that you were not properly served.

  3. If the process server had made more than one attempt to serve you by methods “1″ or “2″, he can attach the demand to your door or put them under your door. Then he must mail it by regular or certified mail within ONE day of attaching the demand or putting it under the door.

What constitutes a proper demand?

A bill for the rent is NOT a proper demand. The demand must include a good faith estimate of the amount of the rent due for the months in which the rent is due and must “demand” the rent.

Does the landlord or the tenant have to prove that a proper demand was made?

The landlord must prove that a proper demand was made. If a proper demand for the rent was not made, you should tell the judge.

What does breach of warranty of habitability mean?

When you rented your apartment, the law requires that your landlord promise that it is not dangerous to life, health and safety and is fit for human habitation. If the apartment was not in good condition when you rented it or bad conditions occurred while you lived there, the landlord has “breached the warranty of habitability”.

This defense is not available if you or your family caused the condition.

However, a breach of warranty of habitability can exist even if it is caused by a person other than your landlord, such as another tenant or by an “act of God” eg. a bad rainstorm.

If the landlord has breached the warranty of habitability, he may not be entitled to the full rent. The amount of rent your landlord will be entitled to depends upon how bad the conditions in the apartment are.

How do I prove a breach of the Warranty of Habitability?

There are several things you must prove to be successful when using this defense:

  1. The landlord had notice of the conditions. That means that when bad conditions occur, you or a governmental agency must have told the landlord about the conditions so that he had an opportunity to fix them. It is essential that the landlord received notice of the conditions before they bring you to court.

  2. You must tell the Judge how long each bad condition existed at your premises.

  3. You must prove that neither you nor your family caused the bad conditions.

  4. You must tell the Judge how living with the bad conditions has affected you and your family.

Other than my testimony, what would improve my chances of being successful when I use the Breach of Warranty of Habitability defense?

It would help your case if you brought to court pictures of the bad conditions and reports from governmental agencies, such as a local building department or the Health Department.

Remember to have these reports certified by the governmental agency that prepared them.

If you can get the person who inspected your apartment to come to testify in court, that also will be helpful.

What kind of damages can I expect if I am successful in my defense of Breach of Warranty of Habitability?

If you are successful, the court will grant you a reduction in your rent. It calculates the reduction by determining the value of your premises if it was in good condition and then determining how much the premises is worth in its bad condition. The court will then subtract the two numbers. For each month the court finds the conditions existed, your rent will be reduced by the difference between the two rents. For example, if your rent is $500 a month but the court finds that the premises in a bad condition is only worth $400, you will have your rent reduced by $100 for each month the condition existed.

Can the landlord hurt my case by telling the court that I took the premises knowing there were bad conditions?

No. Because our lawmakers believed that each unit rented should be in good condition, the defense of breach of warranty of habitability can never be given up by the tenant. Therefore, even if you knew of the bad conditions when you moved in, you can still use the defense.

What is a Constructive Eviction?

A constructive eviction occurs when the landlord interferes with the tenant’s possession of the premises so that the tenant cannot use all or part of it. For example, a constructive eviction exists if a ceiling in your unit is leaking so bad that you cannot use that room.

If I am successful in my claim of Constructive Eviction, what kind of damages can I get?

As in the case of breach of the warranty of habitability, the court will grant you a reduction in your rent. It will determine the value of your unit in good condition and the value of your unit without the use of certain parts. Then it will give you a reduction of rent based on the difference between the two.

When can I use the Defense of Unilateral Increase in Rent?

When the landlord claims that the rent was raised and you never agreed to the increase in rent, you can use this defense. However, if you paid the increase, even for one month, that is strong proof that you, in fact, did consent to the increase, and you probably will not be successful with this defense.

Do I have any ground 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 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 or if fees are excessive.

It is important that you read your lease to determine if you have this defense

What is a partial actual eviction?

A partial actual eviction occurs when the landlord puts a lock on a room that is part of the rental, or uses it to store landlord’s property or moves someone else in. Here, the obligation to pay rent is totally suspended.

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