Monday, December 6, 2021

How To Evict A Family Member In New York State

Make An Eviction Filing

How to Evict a Tenant

If the tenant fails to comply with the notice and continues to breach the lease by not paying rent, violating the lease terms or holding over after a lease term is up, the landlord may then file a Petition with the Local City, Village or Town Court if the property in question is outside of New York City, or with the Housing Court if the property is inside New York City.

Most forms have to be Notarized before they can be filed with the court.

Petition Is Filed And Served

As the next step in the eviction process, New York landlords must file a petition in the appropriate court. Filing fees vary depending on the type of eviction case and where the case is being filed.

The notice of petition and petition for eviction must be served on the tenant by anyone who is not part of the case 10-17 days prior to the hearing.

The petition for eviction and notice of petition may be served via one of the following methods :

  • Giving them to the tenant in person
  • Leaving them with someone who lives or works at the rental unit
  • Posting the petition and notice in a conspicuous place OR under the entrance door of the rental unit
  • If the petition and notice of petition were left with someone other than the tenant, or posted on the rental premises, then a copy of both must also be mailed to the tenant via registered/certified mail AND via first class mail.

    10-17 days. The petition and notice of petition must be served on the tenant 10-17 days prior to the hearing date.

    What Defenses Do I Have For Not Paying Rent

    The suspension of evictions through a Declaration does not suspend your obligation to pay rent.

    • Please see “Get Help With Paying Your Rent” for further information about how to obtain rent assistance.

    In addition, you can contact your local Department of Social Services if you need help paying rent.

    You are protected from eviction for failing to pay rent that came due starting March 7, 2020 if you suffered a financial hardship.

    To receive the protections, you must raise in court that you are suffering from financial hardship. This is a different law than the law that allows you to file a declaration about financial hardship although you can use your declaration to prove hardship.

    If the court finds that you had a financial hardship due to COVID-19, the landlord will not be allowed to evict you for the rent that was owed due to your hardship. However, the court can issue a money judgment against you for that rent.

    The court will look at the following factors to determine whether you had a financial hardship due to COVID-19:

    • your income prior to the COVID-19 covered period
    • your income during the COVID-19 covered period
    • your liquid assets and
    • your eligibility for and receipt of cash assistance, supplemental nutrition assistance program, supplemental security income, the New York State disability program, the home energy assistance program, or unemployment insurance or benefits under state or federal law.

    It depends.

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    Does The Law Apply To All Tenants

    The options are available to tenants who cant pay their rent as well as those in so-called holdover evictions, which occur after the expiration of their lease.

    Many holdover evictions were still in process at the onset of the pandemic in New York, and have been proceeding as normal since the fall, even if some tenants have claimed financial hardship due to COVID-19.

    If a tenant was already involved in a pending eviction proceeding and files a declaration under the new New York law, their case would be stayed for at least 60 days.

    If an eviction warrant has yet to be issued, the case will be stayed until at least May 1.

    The law allows for the eviction of tenants who violate their lease by persistently and unreasonably engaging in behavior that substantially infringes on the use and enjoyment of other tenants or occupants or causes a substantial safety hazard to others.

    This could include property damage inside or outside of the rental unit, even if it doesnt directly impact another tenant or neighbor, Kavanagh clarified Monday.

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    Stopping An Eviction And Staying An Eviction

    Eviction Notice Template

    To stop or stay an eviction you need to ask the court in writing by filling out an Order to Show Cause and bringing it to the courthouse as soon as possible. If the Judge signs the Order to Show Cause with a stay of the eviction, this will stop the eviction after you deliver the court papers to the landlord until you come back to court on the new court date. Read How to Ask the Court for Something to learn about Orders to Show Cause. If the landlord got a default judgment against you because you missed your court date, you can ask the court to cancel the judgment and let you defend the case. Read Vacating a Default Judgment and use the Courts DIY Form program to make the court papers that you need.

    It may be very hard to stop the eviction if the landlord has a judgment against you after a trial, or if you didnt keep promises you made in a settlement. But, the court has the power to stop the eviction for a period of time , or stop the eviction for good and cancel the judgment, before the Marshal does the eviction. The court can stay the eviction for up to 1 year if you prove that you cannot find a similar home in the same neighborhood, or that moving would cause you extreme hardship. Factors include things like, serious ill health, or how it would effect your child to change schools. If the court stays the eviction, you must pay money to continue living there in the amount you paid as rent.

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    What Should I Expect If I Have A Pending Eviction Proceeding

    If you deliver the New York State Hardship Declaration to your landlord or a court, the eviction proceeding will be paused until at least January 15, 2022. Check here for information on how to deliver the declaration to a court. If you submit an application for the ERAP program, any eviction action pending against you will be paused until you get a decision on your application.

    If you are scheduled for a virtual or in-person proceeding, contact Nassau Suffolk Law Services or another attorney. Contact the court clerks office to determine if your case is paused.

    Find And Learn The Process Of An Eviction In The State Your Property Is Located In

    Each State has different things to do in an eviction, This is called the process of an eviction. Most all evictions start with some kind of termination of the tenancy either by the Landlord or the Tenant. Every State has Laws that make it necessary to follow that States Process in the event of an Eviction. Learn The Eviction Process in your State. Landlords and Tenants find information on how to evict a tenant or how to defend an eviction.

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    How Can You Get Professional Help With Evicting Family Members

    Evicting a family member is not an easy task at all, so if you want to avoid emotional blackmail, it might be worth considering a professional lawyer specializing in landlord or tenant law. Since evictions are regulated by state and local law, an attorney will help you with the type of notification you must give, documents you must file, checks you shouldnt give out. Hiring a professional attorney will also make things easier from a financial perspective. Moreover, making even a tiny mistake when filling out forms can lead to a legitimate case being thrown out of court. If you decide to use a professional to evict your family member, enter your ZIP code in the box.

    Eviction Process For Illegal Activity

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    Landlords are not required to give tenants written notice prior to pursuing eviction for illegal activity, since most illegal activities void the lease.

    , but is not limited to:

    • Illegal trade/manufacturing
    • Prostitution
    • Illegal business

    Tenants involved in illegal activity dont have the option to stay in the rental unit, even if they correct the violation.

    If the tenant remains on the property after the notice period expires, the landlord may proceed with the eviction process.

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    Court Hearing And Judgment

    The hearing date is set at the time the landlord files their petition for eviction with the court. The hearing must be held 10-17 days after the petition is served on the tenant.

    A tenant will not have an opportunity prior to the hearing to respond to the eviction and must appear if they want to explain why they feel they should not be evicted.

    Either party can request one 14 day adjournment .

    If the tenant fails to appear for the hearing, the judge may make a ruling on the eviction that day.

    • Evictions for nonpayment of rent. The tenant must respond to the petition within 10 days. A hearing will be set for 3-8 days after the response is received by the court. If theres no response, the court may rule for the landlord. However, a tenant can pay rent in full any time prior to a hearing and the eviction will be stopped.
    • All other eviction types. If a tenant wants to contest the hearing, they must bring any documentation to the hearing thats already scheduled, which is when the tenant can present reasons for why they shouldnt be evicted, or for why there shouldnt be a hearing in the first place.

    If the judge rules in favor of the landlord, a writ of execution will be issued and the eviction process will continue.

    10-17 days. The hearing must be held 10-17 days after the petition is served on the tenant.

    What If I Can Pay The Rent Now But Can’t Get Caught Up On Payments That I Missed During The Pandemic

    As explained above, tenants can still face a money judgment for rent owed during the pandemic. Tenants cant be evicted for rent owed during the pandemic. They can be evicted for not paying rent prior to the pandemic.

    Landlords may try to apply rent payments to the earliest month of rent owed. For example, if you missed rent payments from April to December 2020 but started paying rent again in January 2021, your landlord could try to apply the January 2021 payment to your April 2020 rent.

    Tenants who couldnt pay rent during the pandemic may wish to earmark future payments for the month in which they are made.

    · If you pay by check, note that the payment is for the current month in the checks memo line.

    · If you pay in cash, you should get a receipt with the month you paid for noted on the receipt. If your landlord wont provide a receipt, you should not pay in cash.

    · If you pay by money order, you should keep a copy of the money order , which shows that it was earmarked for the current month.

    Earmarking a rent payment will clarify that you only missed payments during the pandemic. But it is possible that your landlord wont accept earmarked payments. If that happens, you should contact an attorney about your options.

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    What Does It Mean To Evict A Child From A Home

    Eviction proceedings are sometimes called forcible entry and detainer or unlawful detainer actions. Once your complaint or petition has been filed and served on your tenant child, there may be a court hearing to determine if and how your child should be evicted.

    However, if a child is over 21 years old and pays rent or has an obligation to pay utility or other household bills under an enforceable lease, he or she could be treated like any other tenant. The obligation to pay for housing, even if the child didnt actually pay it, creates a tenancy.

    What Else Does The Law Do

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    The law will protect property owners from credit discrimination if they fall behind on mortgage payments or if they receive a stay of mortgage foreclosure, tax foreclosure or tax lien sales on the property.

    The law limits the protections to single family homes, co-ops and owner-occupied multifamily primary residences with one to nine rental units.

    This bill will also require local governments to automatically renew the annual requirement for eligible recipients to recertify their Senior Citizens Homeowner Extension and Disabled Homeowner Exemption benefits for 2021.

    Normally, eligible recipients need to file renewal applications, sometimes in person at the assessors office. The law will additionally allow for exemption increases if the homeowner is entitled to one.

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    How To Get Someone Out Of Your House Who Wont Leave: Is The Relative You Want To Evict A Tenant Licensee Or Neither

    States have different laws on exactly how to classify someone who stays in a home or rental unit, whether he rents, leases, or stays without any agreement or payment of rent. In the eyes of the law, your visitor can be classified as a tenant or licensee.

    In some areas, hes considered a tenant when he has a lease or pays rent, but in other areas a tenant is simply someone who occupies a space you own .

    A person who stays in the home of a landlord for an extended period of time can also be considered to have a lease and be classified as a licensee, depending on state law. Some states even say its acceptable to ask the person to leave and remove his belongings, no eviction notice or legal action necessary, as long as rent wasnt exchanged.

    If youre a reluctant landlord trying to evict a guest from your house, the first thing you need to do is establish how your state classifies this unwelcome visitor. If hes considered a tenant or licensee, you as the landlord will need to go through the eviction process.

    How To Legally Remove Adult Children From A Parents Home

    If discussion, negotiation, bribing and pleading dont work, then the parent has legal remedies. The remedy, as always, depends on the circumstances and the state, as states have their own laws on eviction, ejectment, and trespassing.

    Did you invite the adult child to live with you?

    Have your adult children ever paid rent?

    Is there any type of written agreement?

    Have you notified your child in writing that you want them to vacate your home?

    Trespassing

    In California and many other states, if you initially welcomed an adult child to live in your home and never asked him or her to pay rent, then he or she is a guest. If the welcome has worn out, you can demand that he leave. If your child refuses to leave then he has become a trespasser.

    You can , although there is no guarantee the police will agree to remove them, especially if there are signs of long-term residence or the parents invitation. Alternatively, some parents change the locks when their adult child is out, but its best to consult with an attorney before resorting to this. Once out, the adult child has no valid legal remedy to re-enter the house without your permission.

    There is always the small possibility, of course, that an adult child may sue a parent who pursues this course of action.

    Eviction

    An attorney who specializes in evictions should usually be consulted, since properly instituting an unlawful detainer proceedings requires many technical requirements.

    Ejectment

    Restrictions on Removing Adult Children

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    Navigating These Laws Is Confusing Here Are A Few Frequently Asked Questions From People Who Have Used Our Tool:

    Yes, this is a free website created by 5013 non-profit organizations.

    No, you can use this website to send a letter to your landlord via email or USPS mail. You do not have to pay for the letter to be mailed. If you choose not to use this tool, you will be responsible for mailing your declaration.

    YES. THIS IS NEW. Landlords now have the right to challenge the validity of a tenants hardship declaration. To do this, landlords can file a motion with the court, stating they dont believe the tenant has the hardship they claimed in their Hardship Declaration. If this happens, the Court will then grant a hearing to determine the validity of the tenant’s hardship claim and tenants will need to show proof of the hardship they claimed in their Declaration. In NYC, tenants will be assigned an attorney through Right to Counsel for these hearings.

    If the court decides that the tenant proved their hardship claim, then their case/eviction remains paused until at least January 15, 2022. The court will direct the parties to apply to ERAP if it seems like the tenant is eligible and they haven’t yet applied.

    If the court decides that the tenant is NOT experiencing hardship, then their case and eviction can move forward.

    Yes, the protections outlined by New York State law apply to you regardless of immigration status.

    What Did Opponents Of The Bill Have To Say

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    Some Republican lawmakers argued in legislative hearings Monday that the law does not treat tenants and landlords equitably, and essentially kicks the can down the road in terms of real economic recovery in the state.

    Tenants deserve relief, but the legislation before us today, however well intentioned, will not help people get back to work and meet their rent obligations, and its not going to preserve affordable housing or help economic recovery, said Sen. Pamela Helming, who represents a large, rural swath of the Finger Lakes region, in the Senates special session Monday.

    The law will strip landlords of their property rights by forcing them to keep tenants on their property while throttling eviction court proceedings, said Assemblyman Andy Goodell, who represents areas in and around Chautauqua County in western New York.

    We are dealing with fundamental property rights, Goodell said. Landlords are deprived of their property without any opportunity for due process.

    Sarah Taddeo is the consumer watchdog reporter for USA Today Network’s New York State Team. Got a story tip or comment? Contact Sarah at STADDEO@Gannett.com or 258-2774. Follow her on Twitter @Sjtaddeo. This coverage is only possible with support from our readers.Please consider becoming a digital subscriber.

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