How “NOT” to Get Evicted (Part 2)

Last month, we covered the basics of fighting eviction proceedings in Housing Court: basic court proceedings, not trusting the landlord’s lawyer, stipulations and out-of-court settlements, orders to show cause, and how to address the court. This month, we cover specific types of eviction proceedings and how to deal with them.

Nonpayment Proceedings

Not every nonpayment proceeding involves a genuine threat of eviction, but familiarity with the following concepts will lead to a better result in all cases.

Legal rent: The maximum rent a tenant owes is limited by the lease and/or the laws and regulations affecting their home, such as rent stabilization, rent control, and the rules for public housing or subsidized housing. You should learn the correct legal rent for your apartment, because landlords routinely bring eviction proceedings seeking more than the legal rent. They also often seek “late fees,” “attorney’s fees,” and other additional charges that you don’t have to pay.

Abatement: There are 3 million housing-code violations on the books, and many of them involve the apartments involved in nonpayment proceedings. Although the state “warranty of habitability” law requires judges to reduce the amount of rent owed if repairs have gone uncorrected, and the judges have access to the code violations through computer terminals in each court, almost no judges will look at the computer on their own. It therefore falls on the tenant to prove that those conditions exist, which can be done through testimony, photographs (always worth their weight in gold), requesting an inspection at the beginning of the case, and getting the judge to “take notice” of the violations already on record, either through the computer terminal or obtaining a certified copy of the written records from the city code-enforcement office, which is now located at 39 Broadway in Manhattan but may be moving soon. Note: Even if a condition has been corrected, the law entitles a tenant to a rent abatement for the entire period it existed.

Notice: You will also have to prove that these conditions were brought to the landlord’s attention. This is called “notice.

Access: Many landlords will claim that they tried to fix the conditions (even after first denying that they existed or that they knew about them) and that you denied them access to the apartment. For this reason, whenever you get a letter asking for access, you should answer in writing and keep a copy. Similarly, complaints about repairs should also be in writing.

Time to Pay

With secure, well-paid jobs increasingly scarce, more and more people find themselves falling behind in their rent. Knowing Housing Court procedures can enable a tenant in temporary financial difficulties to get a few weeks or months to catch up.

One point to consider is that the more defenses a tenant raises, the more time it will take the court to resolve them. These defenses can include questioning the legality of the rent demanded, asking for an abatement based on bad conditions in the apartment, and simply requiring the landlord prove everything he needs to prove in order to get a judgment, including that he owns the building, registered it with the city and state, and followed the required procedures to start the case by personally serving the tenant with the papers.

If the papers were served some other way, such as one copy being taped to the door and another mailed (called “nail and mail”), you can insist that the landlord prove he complied with the law, which requires several “reasonable” attempts to deliver the papers in person before he is allowed to use another method of service. The person who allegedly made these attempts would have to come to court and testify at a “traverse hearing.

Holdover Cases

In some cases, the owner is not suing for rent, but claims that he has the right to evict the tenant or occupant even if they offer to pay the rent. This kind of case is called a “holdover.” There can be many bases for a holdover, including: a claim that the tenant no longer uses the apartment as her primary residence; that she has sublet the apartment without permission; that she has “too many” roommates; that she is violating her lease by having a dog or a washing machine or in some other way; or that the owner wants to use the apartment for his own family.

These cases can be very complex, and many successful defenses are possible. Again, it is critical to get expert advice and accurate information as early as possible when facing a holdover case, and it is often advisable to find a competent lawyer.

Organize

The final way to prevent evictions is to organize. If one tenant in a building is having problems, chances are other tenants in the building are too. By working together in a tenants’ association, tenants can force the owner to make concessions that no individual could win on their own.