As a landlord, it is best practice to stay updated on current eviction procedures. This article outlines the general steps any residential landlord should take when evicting a tenant under two common circumstances: (1) when a tenant fails to pay rent and (2) when a tenant fails to vacate the property at the conclusion of the lease term. It is worth noting that this article does not, however, consider regulations applicable to HUD-managed properties.
The Premise. Management Co. (“Management”) executed a management agreement with Rent-With-Us, LLC (“RWU”), a local landlord of a duplex, that grants Management the right to collect rents and enforce tenant obligations at the duplex. Since managing the duplex, Management has monitored two tenants. The first tenant, Tina, occupied her apartment for three years and fell behind on rent two months ago. The second tenant, Charlie, occupied his apartment for nine months and has a lease term that expires in three months. Last week, RWU informed Management that it wants to evict (1) Tina if she fails to pay rent for the approaching month and (2) Charlie if he fails to vacate the apartment at the conclusion of his lease term. RWU wants to lease each apartment immediately following each tenant’s departure.
Knowing that RWU wants to evict these tenants, Management must be proactive. The necessary paperwork must be prepared and served to each tenant before Management can file any eviction papers. Management must familiarize itself with the following forms to evidence RWU’s entitlement to warrant of eviction and judgment of arrears: (1) Notice of Failure to Receive Rent, (2) 14-Day Notice to Quit, (3) Non-Renewal Notice, and (4) an Affidavit of Service.
Tenant 1: Failure to Receive Rent Payment
Most lease agreements grant a landlord the right to evict a tenant if the tenant fails to pay rent in a timely manner. However, a tenant must first be given notice before a landlord can seek a court’s assistance with collecting rental arrears or removing an unwanted occupant. The following steps will help Management achieve RWU’s goals in a timely and efficient manner:
Review the Tenant File. If organized correctly, the tenant file should provide Management with vital information about the tenant-landlord relationship and should include: (1) the lease agreement, identifying the tenant(s), the lease term, and the rental rate, (2) the tenant’s rental ledger, showing the tenant’s payment history, and (3) written communications between landlord and tenant, informing Management about any past complaints, which could become defenses for Tina’s failure to pay rent.
Send Default Notice. To justify a landlord’s entitlement to rental arrears, Real Property Law § 235-e [d] requires Management to send Tina a Notice of Failure to Receive Rent, via certified mail, for each month she does not pay rent. Because Tina failed to pay rent for two prior months, Management can send one notice to Tina that identifies each month she failed to pay rent. Management must retain a copy of the certified mailing receipt to prove RWU notified Tina. If Management fails to send Tina this notice, Tina can claim she lacked knowledge of her default and request the court grant her additional time to cure.
Communicate with the Tenant. It is best that Management sends Tina written communication after sending the default notice. Management should do this to demonstrate a good faith effort to rectify the default in terms agreeable to Tina and RWU. If Tina cures the default, Management no longer has a reason to evict Tina. If Tina fails to cure the default, Management must send Tina a 14-Day Notice to Pay or Quit and contact an attorney in anticipation of having to file an eviction petition.
14-Day Notice to Pay or Quit. Real Property Actions and Proceedings Law § 711(2) requires Management to serve Tina with a 14-Day Notice to Pay or Quit via personal hand delivery or double mailing, demanding Tina pay her rental arrears. The notice must breakdown RWU’s calculation of Tina’s arrears and put her on notice that if she fails to cure her default at the end of the 14-day notice period, RWU will initiate an eviction proceeding. As proof that Management sent the 14-Day Notice to Pay or Quit, an affidavit of service must be executed and notarized.
Preparing the Petition. Management must work with their attorney to finalize the eviction petition. The attorney will need the tenant file, which, for a nonpayment eviction, must include: (1) any default notices and the corresponding certified mail receipts, (2) the 14-Day Notice to Pay or Quit and the corresponding affidavit of service, and (3) a copy of the fully executed lease agreement. The attorney may also need the management agreement with RWU to eliminate any challenges to Management’s ability to evict Tina.
Tenant 2: Holdover
A landlord has the right to have a tenant removed from an apartment if that tenant stays beyond the termination of their lease term without permission. The lease termination date should be included within the lease agreement, and Management should follow the steps below to ensure the correct paperwork exists to effectuate Charlie’s eviction if he decides to continue his occupancy of the apartment without RWU’s permission:
Review the Lease Agreement. The lease agreement should list the lease term, informing Management when a Non-Renewal Notice should be sent to Charlie.
Send Non-Renewal Notice. Because Charlie has a lease term of one year, he is entitled to a 60-Day Notice of Non-Renewal under Real Property Law § 226-C. The notice should be sent via certified mail and must put Charlie on notice that RWU has elected not to renew Charlie’s lease. The notice must also inform Charlie that his failure to vacate the premises will force RWU to initiate an eviction proceeding.
Monitor the Premises. It is possible that Charlie may vacate the premises before his lease term ends, which will eliminate Management’s need to file an eviction petition. However, if Charlie fails to vacate the premises at the end of his lease term, Management should contact an attorney in anticipation of having to file an eviction petition.
Send Default Notice. It is not unusual for a tenant to stop paying rent after receiving a Non-Renewal Notice. If Charlie stops paying his rent, Management must send Charlie a Notice of Failure to Receive Rent via certified mail for each month Charlie fails to pay rent. This notice must be sent after any grace period included in the lease agreement, and act as support for RWU’s entitlement to a judgment for rental arrears.
Preparing the Petition. To file an eviction petition for a holdover tenant, the attorney Management retains will need: (1) the Non-Renewal Notice, (2) the default notices, if any, and the corresponding certified mail receipts, and (3) a copy of the fully executed lease agreement.
The Takeaway. Evictions can be tricky. Efficiency and cost effectiveness depends on: (1) a landlord’s ability to maintain complete tenant records, ensuring each tenant has a file that includes (a) a fully executed lease agreement, (b) an updated rental ledger for the tenant, (c) all written communications to and from the tenant, and (d) the records of service for any notices sent to the tenant, and (2) getting an attorney involved as early in the process as possible.
Katherine T. McCarley is an Associate in Underberg & Kessler LLP’s Litigation Practice Group. She focuses her practice in the areas of civil and commercial litigation, defending institutional and small businesses. Katherine can be reached at (585) 258-2820 or at kmccarley@underbergkessler.com.
Reprinted with permission from The Daily Record and available as a PDF file here.
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