A Tenant's Guide To Housing Court
Part 1 -- What To Do When You Receive A Non-Payment Petition (Dispossess)
Go to Part 2
If you are not paying your rent, your landlord will probably take you to court to try to get the rent or get you out. The landlord does this by serving you with a "dispossess," technically a Notice of Petition and Petition for Non-Payment of Rent (see Sample A side 1, side 2). In the dispossess, the landlord asks for the amount of rent he or she claims you owe and seeks to evict you if you do not pay that amount. The court may also send you a postcard notifying you that the landlord has started a non-payment proceeding against you.
In a non-payment proceeding you cannot be evicted lawfully as long as you answer the dispossess, make required court appearances, and pay what the judge orders or what you agree to pay within a specified time.
Answering The Dispossess
You have 5 calendar days to respond to the Petition by going to the Housing Court Clerk's office at 141 Livingston Street, 2nd Floor, Brooklyn and giving the Clerk your answer. Lawyers usually file written answers. Most tenants, however, find it easier to tell the Clerk their answers and have the Clerk write them down.
Your answer gives your "defenses," the reasons you believe the landlord should not get what he or she is asking for. Some of the most common defenses are listed below. If you think you have another defense, tell it to the Clerk. If your answer is technical or complicated, you may want to consult an attorney before you answer the dispossess or before your court date.
- Improper Service. Include this defense if the dispossess was not delivered to you in the proper way. For details on improper service, as well as other defenses, see "Proving Tenant's Defenses".
- General Denial. You should always include the words "general denial" in your answer. This means that you deny everything the landlord claims in the dispossess and forces the landlord to prove his or her case at trial.
- Payment. If you have already paid some or all of the rent the landlord claims is due, tell the Clerk. Read the dispossess carefully; landlords often claim that you owe rent you have already paid.
- Breach of Warranty of Habitability (Bad Conditions). State the bad conditions in your apartment and in the building generally. Ask the Clerk to send an inspector from the Department of Housing Preservation and Development (HPD) to verify the bad conditions before the date on which you'll return to court. If you eventually have a trial, there will be an official record of the problems.
- Stale Rent. If the landlord has delayed suing you for more than three months from the time rent became due, the landlord may not be allowed to get a judgment of eviction against you for more than the last three months rent. Tell the Clerk that the landlord is suing for "stale rent."
- Rent Overcharge. The landlord may be charging you more than the legal rent. Tell the Clerk the amount you believe you should be paying.
- Illegal Multiple Dwelling. If your building contains three or more separate apartments, it is a multiple dwelling. If the landlord has not registered the building with the City within the last three years as a multiple dwelling, the Multiple Dwelling Law says that Housing Court cannot be used to collect the rent. If you live in a one- or two-family house, you cannot use this defense, unless your landlord is renting out additional units in the building, such as in the basement. Information regarding multiple dwelling registration can be obtained from the Department of Housing Preservation and Development (HPD), located on the 6th floor at 210 Joralemon Street, Brooklyn, New York.
The law allows you to file counterclaims when answering a dispossess. A counterclaim is a claim by you against your landlord, such as for money or repairs. You can file a counterclaim simply by telling the Clerk that you want to file one and stating the grounds of your claim and the amount of money you feel you are entitled to.
Unfortunately, the judge will often "sever" your counterclaim if it is not directly related to the non-payment proceeding. This means that you will have to handle the counterclaim as a separate case. This is difficult to do without a lawyer. If you are seeking less than $2000 in damages, it may be easier to file an action in Small Claims Court, which you can do without an attorney.
Some common counterclaims follow.
- Breach of Warranty of Habitability (Bad Conditions). If you feel that the violations are so bad that you are entitled to a complete rent reduction (abatement), plus additional money to pay for your suffering, list this both as a defense and a counterclaim. This will also allow you to proceed in court even if the landlord's case is dismissed.
- Rent Overcharge. If the landlord has been charging you more than the legal or agreed upon rent, multiply the number of months you have been overcharged by the amount of the monthly overcharge. If the overcharge was "willful," you may be entitled to treble damages.
- Harassment. If the landlord has done things which seem intended to drive you out of the apartment, counterclaim for harassment and state the things your landlord has done to you.
- Failure to Pay Interest on Security Deposit. If your landlord owes you interest on your security deposit, counterclaim for the amount you are owed. If your building has fewer than six apartments, however, your landlord is not required to put your money in an interest-bearing account.
- Damage to Personal Property Due to Landlord's Negligence. If your personal property has been damaged as a result of the landlord's negligence (such as spoiled food due to a broken refrigerator or damaged furniture or clothing due to leaks), counterclaim for the value of the property.
- Personal Injury. If you have been injured as a result of the landlord's negligence, you may be entitled to damages. If your injury is serious, consult an attorney before filing a counterclaim. You can get the name of an attorney who handles personal injury cases from a lawyer's referral service of a bar association. In Brooklyn, call the Downtown Brooklyn Lawyers Association (718-624-2394) or the Brooklyn Bar Association (718-624-0675).
- Cost of Repairs the Landlord Refused to Make ("Repair and Offset"). This can include high gas or electric bills due to failure to provide heat or hot water, or bills for extermination, plumbing, painting, plastering or other repairs which you performed at your own expense. To use this counterclaim, you must be able to prove that you notified the landlord of the conditions and that he or she failed or refused to repair them.
What Happens If You Don't Answer The Dispossess
If you do not answer the dispossess within five days, your landlord is entitled to obtain a default judgment against you. This means that the landlord wins automatically (no matter how awful the conditions in your apartment or building and even if the rent has been paid) and that you can be evicted if you do not pay all of the rent the landlord claims within another 5 days.
If you do not have a lawyer, the only way to answer a dispossess is by going to court. A dispossess CANNOT be answered by going to the landlord or to a welfare office. Even if you've paid the rent or been assured by the landlord that YOU won't be evicted, YOU MUST still go to the Clerk's office to file an answer. IF YOU DON'T, YOU RISK BEING EVICTED.
Going To Court
When you answer, the Clerk will stamp the date, time, and room in which you are to appear in Housing Court on your copy of the dispossess. Hold on to this paper, so that you will know where and when to go to court. On the court date, be sure to arrive early (before 9:30) and go to the room listed on the paper, which will be Part 18, on the first floor of 141 Livingston Street.
If you do not appear at the right time and place or if the Court Clerk doesn't hear you when he or she calls your name, the landlord can get a default judgment against you. Just as if you fail to answer a dispossess, you can be evicted if you do not pay the rent the landlord claims within 5 days.
On the court date, listen carefully to the instructions of the clerk and court officers at the front of the courtroom. When they call your case (landlord's name versus your name), answer "tenant by the court" if you are ready to see a judge. If you do not answer "by the court," you may be sent to a mediator instead of a judge. If you are not ready to present your case, answer "tenant application" and explain why you need a delay. Examples of good reasons for postponing the case are needing time to find a lawyer or to obtain evidence to present your side of the matter. Needing time to get the money is usually NOT accepted as a good reason by the court. If you have asked for more than one adjournment, the court might order you to deposit some or all of the rent money in court to obtain the adjournment.
If the landlord asks for an adjournment, you have the right to oppose the request. The judge will decide whether or not to grant the postponement. If the case is delayed against your wishes, ask the judge to mark the case file "final against landlord." This means that no further adjournments will be granted to the landlord and your case will be heard on the new court date. If the case has already been adjourned several times at the landlord's request, you can ask that the case be dismissed.
If the landlord does not appear in court, the judge will probably dismiss the case. This means that you won; unfortunately, the landlord can bring another case against you at a later date.
If you and the landlord both answer "by the court," you will be sent to a courtroom. Make sure you write down the room number, and then go directly to that room.
Pressure To Settle
While you are waiting, landlords or their attorneys will sometimes want to discuss settling your case (coming to an agreement before a trial). You do not have to agree to anything that the landlord or the landlord's lawyer asks or tells you to do. Don't sign anything unless YOU understand and agree to it. Before you sign an agreement, be sure you know what will happen if you fail to comply with it. You should ask to speak to the judge concerning the agreement before you sign it. Ask the judge to explain the agreement and its possible consequences to you.
Remember: You have the right to see a judge and have a trial.
Sometimes, before you see a judge, you will be sent in to see either a mediator or a law assistant. This person's job is to try to convince the parties to settle their case. If you do not agree with what is suggested, refuse to settle and insist on a trial.
Judges, too, often urge parties to settle their case and sometimes imply that you will lose if you insist on having a full trial. Deciding what to do when a judge pressures you to settle is always difficult. You will have to decide whether you will do better in a trial or settlement. In general, unrepresented tenants tend to give in to settlement pressure too quickly. Holding out for a better deal may force the landlord to improve his or her offer. In the end, though, most non-payment cases are settled, not tried.
You will probably do better in negotiating a settlement if you decide in advance what you want to get and how you will get it. A common bargaining tactic is to start out asking for more than the minimum you will accept. For example, if you have reason to ask for a 50% rent reduction (for example, 15 days without heat or hot water), but will settle for a 25% reduction, ask for 50% at first. You can make concessions as the bargaining process continues.
Some Common Settlements
Some of the common settlements and the advantages and disadvantages of each are listed below.
- Converting a Non-Payment Petition to a Holdover Petition. Sometimes a landlord or a judge will suggest that you move out of your apartment as part of a settlement. This is called converting a non-payment proceeding to a holdover proceeding. Usually the offer will include the landlord agreeing to forget about the back rent owed. Sometimes, the landlord may even offer to pay your moving expenses. An agreement like this is valid if:
- you understood what you were signing;
- you were not forced into signing it because you were told that you had no other choice;
- the landlord gave up something in return, such as all, or part, of the rent you owe.
Although converting to a holdover might sound like a good deal at first, it is very difficult to find decent, affordable housing. REMEMBER -- if you don't move out by the date agreed on, the landlord can send a Marshal to evict you. In non-payment cases, you cannot be required to move, as long as you pay the amount of rent that is due within the time limit ordered by the court. If you don't want to move, or have nowhere to go, don't let the landlord, the landlord's lawyer, or the judge pressure you into agreeing to leave.
- Adjourning the Case for Repairs. You can ask that the case be put off to a new date so that the landlord can make needed repairs before the case goes to trial. If you have time to come back to court this can be a good arrangement because you keep the rent money until repairs are satisfactorily made. Sometimes, if a case is adjourned for repairs, the landlord or judge will ask you to pay all or part of the rent to the court. This reduces your advantage because it takes some of the economic pressure off the landlord, but the court still monitors the case to see if the landlord actually does the repairs before awarding him or her the money.
- Consenting to a Final Judgment. If you consent to a final judgment to pay the landlord a set amount of money, you risk being evicted if you don't make the payment by the date specified in the agreement. Don't agree on a date unless you are sure that you will have the money. Landlords and judges will often urge you to consent to a final judgment in exchange for an order to the landlord to make repairs. This is generally not a good deal for tenants; if the landlord doesn't make the repairs you will still have to pay the money on time or get a lawyer to take the case back to court. You will then have to begin withholding rent the following month.
- Settling for Money. You can end a nonpayment case by simply paying the rent to the landlord in court and signing an agreement in which the landlord acknowledges receipt of the money. This can be for the full amount claimed or can include a reduction (abatement) of the rent to compensate for bad conditions if you and the landlord both agree to it. The case should then be marked "discontinued with prejudice," which means that the landlord can never sue you again for the same period. A money settlement can be a good or bad deal, depending on how much money you have to pay the landlord.
- Agreeing on a "Pay Out" Schedule. Sometimes you can agree to pay the back rent in monthly installments added to your future rent. Usually, landlords will ask that this be in the form of a "final judgment," meaning that if you are late or miss a payment, they can evict you.
Obtaining The Money
Whether the settlement is a good one will also depend on whether you will be able to pay the money you have agreed to pay. If you do not make all the payments you have agreed to make when you are supposed to, Your landlord will most likely be able to evict you.
If you have all the rent money, or know you can borrow it, then you know you will be able to make the payments. If you have no way of getting the money on your own, you may be able to obtain the money from the Department of Social Services ("D.S.S."). However, D.S.S. often will not pay the money or will only pay part of it. Before settling your case, you should try to find out from D.S.S. how much they will pay. If you have not been to D.S.S. before you go to court, ask that your case be adjourned and then go to D.S.S.
Generally, whether D.S.S. will pay the money will depend on your income, your family's size, and your current rent. If you are a public assistance recipient, D.S.S. most likely will not pay any amounts above your shelter allowance. However, if you are a public assistance recipient with children under 18, you may be able to receive amounts above your shelter allowance because of a lawsuit called Jiggetts v. Perales. To find out more about this case, contact one of the Legal Services or Legal Aid offices listed later in this booklet. If you are not on public assistance, D.S.S. has a wide range of discretion in determining what amount to pay. D.S.S. may choose to pay all or none of the amount you owe. Be prepared to tell D.S.S. why you fell behind in rent (it's best if you had a sudden emergency beyond your control) and how you will pay your future rent.
D.S.S. usually will require a breakdown of the rent you are asking them to pay. A breakdown is a statement that describes the amount of rent due for each month for which you are in arrears.
The important point to remember is that D.S.S. often will not agree to make the necessary payments. Keep this in mind when you try to figure out whether you are getting a good settlement.
Scheduling A Trial
If you insist on a trial, the judge may schedule it for another day and ask you to deposit the rent money with the court until the trial is over. The law does not permit the judge to force you to deposit money as long as you are ready to have a trial immediately. You cannot be required to deposit money into court if the postponement is due to the court's busy schedule or because the landlord is not ready to proceed. If you ask for a postponement, the judge can require you to pay the rent to the court pending the trial. NOTE: The law says that even if you fail to make a deposit into court, you still have the right to a trial.
Sometimes, even if you are ready to proceed with the trial, the judge will adjourn the case and reschedule it for a later date. This is usually done when there is not enough time for a full trial on the date for which it was originally scheduled. If the case is postponed, be sure to write down the date, time and room number of the new court appearance. Make sure it is for a day on which you can come back to court. Be sure to appear on the new court date. If you do not appear, you will lose your case even if you have good defenses.
The Landlord's Case
A trial is a formal proceeding in which everything is said under oath and recorded. The landlord must first prove that everything in the dispossess is true:
- that he or she is the landlord;
- that you are a tenant in the building;
- that there is a rental agreement, either oral or written, for the amount of rent stated in the petition;
- that the landlord demanded the rent before the date on the petition; and
- that you have not paid the rent for the months claimed.
In addition, the landlord must prove whether the apartment is rent-controlled, rent-stabilized or neither. If the apartment is rent-controlled or rent-stabilized, the landlord must show that your rent is not more than the legal amount set by the Division of Housing and Community Renewal ("D.H.C.R."). If the apartment is rent-stabilized, the landlord must prove that both the apartment and building have been registered with D.H.C.R.
If there are three or more apartments in the building, the landlord must prove that the building is registered with the Buildings Department as a "Multiple Dwelling" and that it has an up-to-date registration number and managing agent.
Never let landlords off the hook by agreeing that they don't have to prove the basic elements of their cases (known as the landlord's "prima facie" case). If the landlord cannot prove his or her basic case, the judge should dismiss it. Sometimes, a judge will postpone a case to allow the landlord time to get missing proof. Oppose this and insist that the judge dismiss the case and award you the costs of carfare, childcare, time lost from work, and legal fees. The landlord can usually sue you again, but he or she will have to start the process from the beginning.
Proving Tenant's Defenses
At trial, you have to prove the facts needed to establish the defenses in your answer.
Ending The Trial
At the end of the trial, make a closing statement to the judge. This is a summary of the proof on your side. You can also state the things that the landlord has not proved. Finally, tell the judge what you want. You can ask that the judge dismiss the case or "abate" (reduce) the rent to compensate for bad conditions. You can also ask the judge to decide that you owe no rent at all as a result of violations. And you can ask the judge to order the landlord to complete repairs.
After The Trial
After the trial there are several things which the judge may do.
Most likely, the judge will give the landlord a judgment which requires you to pay a certain amount of money within a certain period of time. This may include a rent "abatement." If you do not pay the stated amount within the time required by the judge, the landlord can get a City Marshal to evict you. If you do pay the stated amount within the required time, the landlord cannot evict you. Make sure to get a receipt for your payment. If the landlord refuses to accept the money within the required time, you should do an Order to Show Cause to deposit the proper amount with the Clerk of the Court. See below.
If you do not have the money you are ordered to pay and cannot borrow it, you may be able to obtain the money from D.S.S. Whether D.S.S. will pay the money will depend on many of the factors discussed above. Take a copy of the court's judgment to D.S.S. as soon as you leave court.
If the landlord fails to prove his or her case (or fails to show up in court), the judge should dismiss the proceeding; unfortunately, the law usually allows the landlord to sue you again later. If this happens, you must go through the same steps again.
If you win because you prove payment or because the conditions in your apartment are so bad that the judge reduces your rent to nothing, the landlord cannot legally sue you again for the same months' rent. Get a copy of the judgment to protect yourself in case the landlord tries to sue you again. In rare cases, you can obtain a judgment requiring the landlord to pay you an amount set by the court in addition to allowing you a full rent abatement for the period in which violations were most severe. You can deduct the amount of a judgment you win from your future rent or take it to a City Marshal to collect from the landlord.
The judge may order the landlord to do repairs but will require you to either pay the rent to the landlord or deposit it with the court. If you fail to make the payment or deposit within the required time, the landlord can evict you. Your obligation to pay is, unfortunately, rarely conditioned on the landlord actually doing the work. You have to keep your end of the bargain even if the landlord failed to keep his or hers. If, however, you pay the rent and the repairs are not made, you can start withholding rent again next month.
Go to Part 2