First, my usual disclaimer. The following is not intended to be legal advice, nor am I acting as your lawyer in this matter. The sole goal of this article on dealing with a bad tenant is to assist upstate New York landlords in understanding the law and vocabulary of bad tenants and evictions. If you have any questions, you should consult an attorney in your local area, as landlord/tenant law varies somewhat by jurisdiction.
That out of the way, onto the material that led you to this page, probably a search on “how to evict” or “dealing with a bad tenant” or “rules for landlords” or something of the like. In New York, there are a number of laws and regulations concerning your rights and responsibilities as a person in the business of renting property. The Real Property Law, Real Property Actions and Proceedings Law, Multiple Residence Law, Multiple Dwelling Law, and Executive Law all contain specific provisions related to the ownership and upkeep of rental property. Further, the landlord and tenant entering into a business arrangement can modify some of these rights and duties by entering into a written lease or rental agreement.
So, you’re probably thinking, if you haven’t sped ahead, what does all this do with having to deal with a bad tenant? Someone who hasn’t paid rent or keeps late, loud hours, or has smelly pets or has completely trashed the place? The intent of the above paragraph is to counter one of the most commonly held myths of the landlord world: “It’s my house and I can do what I want, when I want.”
Simply, this isn’t true. In entering a business relationship with the tenant, you’ve given them certain rights to possess the property and use it in certain ways. It is illegal in New York to put out a tenant by force, such as by turning off utilities, removing doors, or putting their possessions on the curb. It isn’t only against the law, but the illegally evicted tenant can sue your for treble damages. If the tenant lost property that was ruined or stolen after it was put on the curb, had to get a motel room for the night, etc., you can see how tripled damages can add up quickly.
There is a proper way to deal with a bad tenant. It isn’t as quick or as easy as forcing someone out, but it’s a lot more legal and less likely to result in lengthy court battles or calls from the police. Doing business in accordance with the law should also benefit your reputation with the court system, who will recognize you are trying hard to comply with the law and are taking your legal responsibilities seriously.
The first question is “why do you want this person out?” The answer to that question will determine the method you need to follow to get bad tenants to leave. If the tenant has not paid the rent, your first step will be to issue a notice to the tenant demanding the amount owed. Note, though, that this is for “rent” and not for other costs or damages. The notice must demand, clearly, that the tenant pay the amount owed within a certain time period or vacate the property, or else you’ll bring a lawsuit. Please pay attention to the multiple “or clauses” in that sentence. If Johnny Unemployed is two months behind in the rent, and you deliver a note saying basically “three days: pay up $750 owed, get out, or I sue”, at the end of the three days you can’t go in and remove the tenant. The only legal eviction in New York is the one ordered by the courts and carried out by a designated official.
Before we address landlord/tenant court, or housing court, what about the other reasons you might want a bad tenant out? Loud, annoying, dirty, etc. Unless you have a written agreement that provides otherwise, your option in this case is to give a notice terminating the tenancy. This is commonly known as a “thirty day notice”, but this isn’t entirely correct. In New York City, the Real Property Law provides that a “30 day notice” means literally, 30 days and you have to leave. In upstate New York, a “30 day notice” means “until the end of the next month from when it is delivered to the tenant.” Of course, this only applies in monthly rental situations. If you’re renting by the week, it means “until the end of the next week”, etc. This is an area that has caused a lot of confusion. So if you want month-to-month tenant Smelly McRoach to leave, and you give her a notice on August 4, the notice will state that her tenancy is terminated as of September 30 and you’ll bring an eviction is she isn’t out by then. The tenant is obligated to pay rent for the intervening month prior to departure, or else you can bring a nonpayment action.
You may be frustrated by the length of time involved, and not without reason. There is a tradition in our legal history of taking all necessary care to protect a person’s interest in land and home. The laws are designed to prevent tenants from being removed on a whim, but, as in any situation, there will be those bad tenants that complicate a well-established system.
If the tenant doesn’t pay or doesn’t leave, you will then have to commence as summary proceeding, which is the official name of the eviction procedure. The rules differ if you are in a town/village court or city court, so you should consult with an authority in your local jurisdiction. In general, however, the important documents are the Notice of Petition (which is like a summons in telling when and where court will be) and the Petition, which spells out your claims against the tenant. There are very specific items that have to be plead in both of these documents, and failure to do so could mean your suit is dismissed. Consult the Real Property Actions and Proceedings Law, Article 7, or a local attorney for advice. There are also very specific timelines for service of these court papers, mainly that they must be delivered to the tenant within 5 to 12 days of the court date. If you prevail at court against your bad tenant, the court will order a “warrant of eviction” ordering the tenant to vacate. The law states that the tenant will have 72 hours to vacate after service of the warrant. In some jurisdictions, the notice of warrant will be served the same day, but in others it can be a week or more before removal is completed. Service and removal must be carried out by the appropriate city or county official, usually by the Sheriff’s Department or a City Marshall.
To wrap up, the best advice for dealing with a bad tenant is to be careful in screening references and credit information prior to letting someone move into your property. This isn’t foolproof or always practical, admittedly. Also, it is important to consider whether your tenant has a good defense to nonpayment or to the issues you are not happy about. If the apartment is in terrible condition due to your failure to repair, you may be violating another section of the Real Property Law, the warranty of habitability, and the tenant may be justified in withholding rent or paying for repairs out of the rent owed. As well, some things that a landlord might not like, such as a friend or relative staying with the tenant, can be protected by anti-discrimination laws depending on the situation.
In short, the law provides that you can get rid of a bad tenant. If the rent hasn’t been paid or if the tenant is breaching the (oral or written) rental agreement, you can use a well-established court procedure to have the tenant removed. Be aware that it is not an instantaneous procedure and it can be complex at times, even though it is more streamlined and efficient than most other actions dealing with real property.
