Hello, econscience. Let me start by putting your mind at rest: the
landlord CANNOT simply call the police and have her evicted
immediately upon the end of the lease. Whatever the grounds for
eviction, whether for nonpayment of rent OR expiration of the lease,
the landlord MUST go to court and get a court order before an eviction
can take place.
The proceedings are only slightly different between a "non-payment"
eviction and an "expired lease" eviction. The only difference is the
amount of notice the landlord has to give. Under New York State Law,
a landlord seeking to evict a tenant for non-payment has to first give
the tenant a chance to pay, by giving her a three-day notice in
writing, stating that she has three days to pay all the rent in full
or else her tenancy will be terminated. But if the lease has already
expired, then the landlord does not have to give that three-day
notice, and he can go directly to court.
See Real Property Proceedings Law Section 711, available at
http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS
Now, if the three-day notice is given, and no payment is made, then
from there on it will be the exact same proceeding as it would be in
an "expired lease" case. Either way, the tenancy is considered to be
terminated, and the landlord may file in court for eviction. But he
CANNOT go directly to the sheriff. He has to get a court order first.
To get the court order, he files a complaint and obtains a hearing
date. That hearing date MUST be no less than FIVE DAYS from the date
of service. This is important -- it's calculated from service, not
filing. He can't file, get a hearing date, and then sit on the papers
and serve them the night before. He is required to give NO LESS THAN
FIVE DAYS' notice. (And no more than 12 days.) Service isn't hard,
though: it's sufficient to hang it on the door and also send a copy by
mail -- so-called "nail and mail" service.
See Real Property Proceedings Law Section 735, available at
http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS
So the hearing is at least five days after service. The hearing
itself will likely only take a day. Then the court issues the order,
either that day or the next. Once the sheriff has the order (called a
"warrant,") he must give seventy-two hours notice to the tenant before
enforcing it.
See Real Property Proceedings Law Section 749, available at:
http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS
So between the end of the tenancy and the sheriff arriving at the
door, there is a minimum -- an ABSOLUTE minimum -- of eight days.
That's ASSUMING the landlord moves as quickly as possible, ASSUMING
there's a hearing date and time available on the fifth day after
service. Often there won't be.
For example, since you mention that her lease is up in the beginning
of February, let's assume that her last legal day of tenancy is
January 31st. So on February 1st, which is a Wednesday, the landlord
goes to court and files. Let's also assume that he serves the papers
that very night. So five days from Wednesday gives us the earliest
possible hearing date -- on Monday, February 6th. BUT! Suffolk
County doesn't HAVE Landlord-Tenant court on Mondays.
(http://www.courts.state.ny.us/courts/10jd/suffolk/dist/civilschedule.shtml#Landlord_ten_days)
So the earliest possible hearing date is Tuesday, and THAT'S only
available in Hauppauge. Let's say the property is in Islip, instead.
Then the hearing would have to be on Thursday. (I called and
confirmed with the clerk -- the eviction action must be filed in the
district where the property is located.) So if the property is in
Islip, the landlord would have to wait, not five days, but EIGHT days
before he can get a hearing, if he raced to the courthouse the minute
the lease expired.
Incidentally, the landlord has no right to garnish wages without a
judgment; and an action for money is not entitled to the same
expedited legal process as an action for eviction. An action for
money takes months, at least. Don't worry about garnishment.
For further reading:
http://www.1800roommates.com/tenant_rights/eviction.php
NY State Bar Assoc: Rights of Landlords and Tenants
http://www.nysba.org/Template.cfm?Section=Educational_Pamphlets&Template=/ContentManagement/ContentDisplay.cfm&ContentID=2006
Suffolk County procedures:
http://www.courts.state.ny.us/courts/10jd/suffolk/dist/landlordtenantFAQ.shtml
Another consideration, since you mention that the tenant is deep in a
financial hole, is bankruptcy. Bankruptcy will delay an eviction.
Evicting a person in bankruptcy used to take MONTHS. The new
bankruptcy law has tightened that up a good bit, but you can still
create a substantial delay -- at least weeks, if not a month or two --
IF you file bankruptcy BEFORE the landlord gets a judgment.
See http://www.caltenantlaw.com/Eviction.htm#Bankruptcy%20Filing
I hope this has been helpful. Please let me know if I can provide any
further information. Best of luck to your girlfriend's mom. |
Clarification of Answer by
hagan-ga
on
12 Jan 2006 14:27 PST
Hello again! I'm glad you found my answer helpful, and I think I can
provide a little more.
For scheduling: If you follow the link at
http://www.courts.state.ny.us/courts/10jd/suffolk/dist/civilschedule.shtml#Landlord_ten_days
it will give you the dates for each township. For Rocky
Point/Brookhaven, the Court handles landlord-tenant matters on Fridays
from 9 to 5, breaking for lunch from 1 to 2.
Landord Tenant Schedule
Ronkonkoma (Town of Islip): Thursday
Deer Park (Town of Babylon): Wednesday
Huntington Station (Town of Huntington): Thursday
Hauppauge (Town of Smithtown): Tuesday
Patchogue (Town of Brookhaven): Friday
As far as their workload is concerned, and whether they could handle
an eviction on the first available Friday, that really varies from
week to week, and sometimes there are settlements that free up time
unexpectedly, so it's really impossible to predict. But the EARLIEST
POSSIBLE DATE for an eviction hearing in your case (assuming the lease
runs out on January 31) would be Friday, Feb. 10th.
And that brings up another potential delay. Most sheriff's civil
officers work Monday through Friday, they don't work weekends. It
would be difficult to get the hearing, the judgment, the judge's
signature, the resulting warrant, AND the sheriff's service, all
accomplished on that Friday. More likely the warrant service would be
delayed till Monday.
As for bankruptcy: She does not have to have it "approved," only
filed. The filing of a bankruptcy case creates an automatic stay of
all legal proceedings against the debtor. So let's say the landlord
files for eviction, and the hearing is all set for Friday, February
10th. If the tenant files for bankruptcy during that time between
service of the eviction action and the hearing date, the hearing WILL
NOT GO FORWARD. It is stayed. (The tenant has to notify the court
and the landlord of the bankruptcy filing, but that's all.) At that
point, the landlord has to go before the bankruptcy court and request
permission to proceed with the eviction action.
In all likelihood, the bankruptcy court WILL grant permission. But
that will take time.
All of this can be used to negotiate with the landlord for additional
time. Let's assume that the tenant has a place to go all lined up for
February 20th. Or March 1st, even. If the landlord can be convinced
that leaving the tenant alone for an extra 30 days will buy him peace,
and he won't have to go through this hassle, he will probably allow
the extra 30 days in exchange for a stipulated judgment of eviction.
But it would likely take a signed lease agreement, or a signed letter
from whoever she's going to move in with, to convince him.
Once again, I wish you all the best of luck. Let me know if I can
provide any further assistance.
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