The two most common disputes, especially in residential properties are because of non-payment issues or holdover issues, although it can be a little bit more complicated in commercial transactions. The landlord would usually bring an action against a tenant because the tenant had not paid them, and in this case there would be a procedure for the landlord to follow, which usually involves the filing or service of a notice to cure or quit on the tenant.
This would generally be a 3-day notice, so the person would be notified that they needed to pay say $2,000 for last two months’ rent, and if they did not cure this default within 3 days of the service of the notice, they would be found in default and then the landlord would be able to bring summary proceedings against the tenant in the court to have them dispossessed. This would be a typical predicate notice on a landlord/tenant action.
How Does It Affect The Process When The Tenant Gets Served?
The theory is that when most clients and tenants get served with these notices, they will manage to scrape up the money and pay the landlord so they would not have to be brought to court. Some landlords serve predicate notices but then do not do anything, which is fine, but eventually, based on the psychology of a tenant, if the landlord started giving the tenant rope, they will just keep taking rope.
I have dealt with plenty of landlords who have come to my office told me they needed to be paid 5 or 6 months of back rent. The problem inherently, especially in Nassau County, is that the judges would not give the person more than 6 months back rent anyway. If the landlord waits much longer than 6 months, the judge would only give them 6 months back rent and not much more than that. It is like a waiver theory out here meaning that the landlord should have acted quicker.
What Is A Holdover?
The other more common issue is what we call Holdover, which is a situation where the tenant’s right to occupy the premises had been terminated either because the lease was expired or because their possession of the premises was pursuant to a no lease agreement, or what we call a month-to-month tenancy.
Most of those actions are resolved because either a lease is expired, the tenant is held over, or the landlord and the tenant do not renew the lease. They go into a term of either months or years thereafter where the tenant just paid the landlord every month, but then something happened in the tenant’s life where they were not able to pay the rent anymore. There would be no lease and for a holdover proceeding, special kinds of predicate notices would have to be served on the tenant.
Generally speaking, there would be a 30-day notice to quit, so after that 30-day notice was expired, the landlord would be allowed to bring a holdover proceeding in landlord/tenant court to have that tenant removed.
Occasionally, the issue would not be that the tenant was not paying, but sometimes the tenant would just be happy in the premises and they would be paying the rental along because they did not have a lease, but without the lease the tenant would not have much protection. They would be in a month-to-month tenancy and that month-to-month tenancy could be called at will by the other party upon 30-days notice.
A landlord may decide they did not want to be a landlord anymore so they wanted to sell the house but the buyer did not want to take the house with a tenant so they would have to bring a proceeding to get the tenant out, which is what a typical holdover proceeding would be like.
Other types of proceedings may also happen, and they would generally be couched as holdover proceedings, but we would have to determine as landlord/tenant attorneys what the true nature of the occupant is, whether they are a tenant, meaning someone who generally paid rent or whether it was a holdover situation, something called use and occupancy.
These types of cases put the case under the jurisdiction of the landlord/tenant court because one of the favorite things for tenants or their attorneys to do is to get the case out of the landlord/tenant court because in LL/T court cases move quickly. The court would dismiss the case if they could be convinced they did not have the jurisdiction and that there was no landlord/tenant relationship. It is good to know these types of things from both sides of the case, both as the landlord’s and the tenant’s attorney.
How Are Situations Involving Squatters Resolved?
We sometimes also have situations involving squatters. When someone is characterized as a squatter or as having a tenancy at will, different kinds of predicate notices would have to be served on the tenant depending on the status of the person who was in the house. This is why it would be very important that anybody who was contemplating doing this themselves should think twice about doing it because they could waste a lot of time by serving the wrong type of notice on the “Tenant.”
For example a landlord would serve a 10-day notice to quit when the tenant is really are just a tenant at will. However the tenant will is entitled to a 30-day notice. At this point the LL would have already wasted 10, 15 or even 20 days doing that, and then they would have to start all over again and serve them with the 30-day notice. The landlord would have wasted a month or month and a half because they did not just pick up the phone and call a lawyer.
Why Would The Landlord Or Tenant Call An Attorney?
Most landlords would be reasonable if the relationship between the landlord and the tenant had been cordial and good for the duration of the tenancy, but there would be a reason why they would call an attorney, and that reason would usually be that the relationship had not been cordial, because the tenant had been paying their rent late for whatever reason so the landlord was calling me because he was worried the tenant might burn them or the tenant would be calling me because he was worried the landlord would get back at them for some reason.
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