What is a holdover proceeding?
This is a type of legal proceeding, in which a landlord attempts to evict a tenant for basically any reason other than non-payment of rent (please note: a holdover case can be very complicated . If at all possible, try to speak to an attorney if you are sued in a holdover).
If you receive a “holdover petition” and a “notice of petition,” it means that your landlord has started a “holdover proceeding” against you. This is a type of court action which can lead to eviction from your apartment. A landlord may bring this type of suit for a variety of reasons, beyond mere non-payment of rent. Some of those reasons* are:
-Your lease has expired and the landlord is not required and does not wish to extend a new lease.
-You have failed to sign a proper renewal lease in a rent stabilized apartment.
-You have violated a substantial obligation under your lease (for example, by committing or permitting a public nuisance).
-Illegal activity within your apartment.
-Repeated failure to pay rent on time.
-You are a “licensee” without a bona fide claim to the apartment.
*Please note that this is not an exhaustive list, and there may potentially be other reasons a landlord wishes to evict a tenant.
The holdover petition and notice of petition MUST be served by someone who is over the age of 18 and is not a party to the action.
Before you receive a holdover petition, you may receive other legal papers which contain important information:
You may receive a “notice to cure,” which will tell you the ways in which the landlord believes you are violating your lease or behaving inappropriately. In fact, your lease may require that such a notice be given to you – check the terms of your lease. Read the notice to cure carefully, to determine whether the allegations are true or false – if the landlord has a legitimate complaint, you may be able to avoid eviction by simply correcting the problem.
In most cases, a landlord must give you a “notice of termination” before starting a holdover case. If you received a notice to cure, you will probably receive the notice of termination about ten days later. The notice of termination must detail the reasons for which the landlord intends to evict you. The notice must also state that you must be out of the apartment by a specific date, or the landlord will take you to court. Note that you do not necessarily need to move out by the date on the notice – only the court can order you out of the apartment.
If the landlord was not required to give you a notice to cure or a notice of termination, you may instead receive a “notice to quit.” This form will tell you that you must be out of the apartment by a specific date, usually ten days after delivery of the notice. This form may explain why the landlord thinks you do not have the right to stay in the apartment. Note that you do not necessarily need to move out by the date on the notice – only the court can order you out of the apartment.
Always read these types of notices, and always keep them in your possession! These are not court papers, but they generally do contain very important information. Even if you do not agree with the allegations in the notices you receive, you must not ignore the situation. In fact, if the landlord does not comply with the procedures outlined above, tell the Housing Court judge – this may be grounds for dismissing the suit. Also, the court may give you time to correct the problem instead of ordering you to move out.
Should I pay rent after I receive a notice of termination or notice to quit?
You may attempt to pay rent during this period, but the landlord may not accept it.
If the landlord does accept your rent after delivering a notice of termination or a notice to quit, the case may be dismissed in court. On the other hand, if the landlord refuses to accept your rent payment (thus preserving the suit in court), you should SAVE THIS RENT MONEY (even if you think the landlord’s lawsuit is not supported by the circumstances)! You will be required to pay at some point.
What should I do if I receive a holdover petition?
Speak to a lawyer! Holdover cases can be complicated, and it may be best to seek legal advice when you receive a holdover petition. Remember to bring all your documentation, including notices and court papers, when you see a lawyer.
If you do not have a lawyer, you can answer a holdover petition in person, with the help of the Landlord-Tenant clerk. The holdover petition will contain certain important information, including the address of Housing Court, the courtroom or “part” you need to go to, and the date and time your case will be called (usually within two weeks after your receive the court papers). You must be in court and on time on your court date – give yourself enough time to get through security and find the courtroom.
You may also visit Housing Court’s Resource Center if you have questions about how to answer the petition or what will happen on your court date.
What are my defenses in a holdover proceeding?
You can defend yourself against a holdover petition by showing one or more of the following* in court
-DENIAL of the landlord’s allegation that you violated your lease.
-Show that you have been the victim of RETALIATORY EVICTION, which occurs when the landlord tries to evict you for complaining about your living conditions. If you have been on contact with HPD, or formed a tenants’ association to discuss living conditions in the building, and the landlord attempts to evict you for these or similar reasons, you may be able to prove that the landlord is trying to retaliate against you.
-The landlord accepted rent from you AFTER the date listed in the notice of termination.
-The information in the notice of termination is TOO VAGUE for you to be able to properly defend the case. In other words, you don’t really know what the problem is, even after you receive the notice of termination.
-You live in an ILLEGAL APARTMENT, which requires a DOB inspection and terminates the holdover petition.
-You are a FAMILY MEMBER of the prior lease holder, and you lived there before that person left the apartment.
-The holdover petition contains LEGAL ERRORS. For example: one or more of the forms was not given to you properly; the notice to cure or the notice of termination was not signed by the landlord or an authorized agent; the holdover petition contains inaccurate information.
*Please note that this is not an exhaustive list, and there may potentially be other defenses. You may wish to consult a lawyer, if possible. If you expect to see a lawyer, you may ask the court for an adjournment on your first court date.
What happens during the trial?
If the landlord proves the allegations against you, you may be given time to correct the problem within a certain amount of time. You may also be ordered to move out, and the judge will determine how much time you have to move out (up to six months, during which time you will have to pay “use and occupancy” instead of paying “rent,” although it will usually be the same amount you were paying in rent).
What is a Marshall’s Notice?
A Marshall’s Notice informs you that you have been evicted, and must leave the apartment immediately
If your landlord is successful in the holdover proceeding, you must move out of the apartment. If you fail to do so, the landlord may have a City Marshall evict you. If this happens, you will receive a Marshall’s Notice giving you 72 hours to vacate the apartment. After that period, the Marshall is legally able to evict you.
If you have received a Marshall’s Notice, and you were not aware that there has been a Housing Court case against you, contact a lawyer immediately!