How "NOT" to Get Evicted
(Part 1 of a guide for tenants and advocates)

Possession is nine-tenths of the law, according to an ancient saying. The point is that in any eviction situation, the longer you can stay in your home, the better your chances of not being dispossessed. The following ideas may help prevent evictions in a variety of situations. Remember, however, that every case depends on its specific facts, and the best way to deal with it varies with how the law applies to those details.

Knowing how to recognize the critical elements of a case and gaining time to change them in a favorable direction is the key to avoiding evictions. No one should go to court without complete knowledge of Housing Court procedures, as well as the underlying laws concerning their particular case. The only way to get this information is by reaching out to someone who already has it. Met Council, the City-Wide Task Force on Housing Court, and numerous other community groups throughout the city can provide useful information about eviction prevention.

Be wary of the landlord's lawyer. These are people who spend every day trying to evict people whenever possible, because New York's rent laws allow substantial rent increases when there is a change in tenants. If the landlord's lawyer realizes that he is dealing with a tenant who has a valid case and knows how to present it (two different things!), he will often facilitate a settlement, called a "stipulation."

However, it is important to remember that the lawyer is working for the landlord and trying to arrange the best deal possible for him, which means the worst deal possible for you. For this reason, the landlord's lawyer should not be your only source of information, and what he says should be checked.

Judgment Day

Even if the parties agree on the basic terms of an agreement, such as how much money will be paid, when it will be paid, and what repairs will be made, the way this is written up can make a world of difference. The landlord's lawyer will generally want you to consent to a "final judgment," allowing him to evict you if the money is not paid as scheduled. It is in your interest to refuse to agree to this. Sometimes, due to unforeseen circumstances, the money is not available when expected. If you have already agreed to a final judgment, an eviction warrant can be issued. Consenting to a final judgment when they are not 100% certain that the money will be there is probably the most frequent mistake tenants make that speeds up their own evictions.

If repairs are needed, it is reasonable to demand that all or part of the money be withheld until after they are completed.

Orders to Show Cause

If a judgment has already been issued in a case, either through an agreement, after a trial, or because the tenant did not appear in court, it is possible to prevent an eviction by bringing an "order to show cause," meaning that the tenant will try to persuade the court to prevent the eviction, and the landlord will have to "show cause" why this should not happen.

It is crucial to have good advice at this stage, because the papers and proof submitted to the court must set forth all of the tenant's claims in the proper form. While the Housing Court clerks will be of some assistance in helping a tenant with no lawyer to fill out these forms, they are not tenant advocates and cannot give advice.

Defaults

Many evictions take place because the tenant never appeared in court, or missed a subsequent court date. Even after a default judgment is issued, a tenant must receive a 72-hour notice from the city marshal before an eviction can take place.

You then have an opportunity to bring an order to show cause to vacate the default judgment. You must show two things to vacate a default judgment: (1) a valid reason for not coming to court. This could include a medical or family emergency, not getting notice that the case was in court, being delayed by a transit problem, or not understanding what to do; or (2) A meritorious defense. Even if you had a good excuse for defaulting, the court will not open up the case unless you also set forth a valid claim or defense to it.

The Halls of Justice

Hundreds of thousands of cases are brought in Housing Court every year, and as anyone who has been there knows, the courtrooms are often jammed to capacity. The judge, her assistants, or the landlord's attorney will often suggest that the tenant go outside into the hallway and talk with the landlord to try to settle a case. Whether this is advisable or possible depends on the facts of each case. But a tenant is never obliged to settle a case, and has an absolute right to have the case go to trial before the judge.

Because of the number of cases in Housing Court, most judges cannot try all of the cases which need to be tried on the first day. If a case is not settled, you will usually be told to come back in a few weeks for the trial. If the landlord is not offering a reasonable compromise in settlement discussions, and the tenant refuses to cave in but demands a trial, this may cause the landlord to be reasonable, rather than pay his lawyer to come back again for a trial.

Because it is easier for both the landlord's lawyer and the court if a case is settled, tenants will often face enormous pressure from the landlord's attorney or the court to settle a case, which can be quite intimidating. If this happens, it is critical for you to know which threats are real and which are bluffs.

The most common of these situations is when a tenant is told that if she does not settle the case but goes to trial and loses, she will have only five days to pay whatever is found to be due, or face eviction. In most cases, the court would not even be able to try the case for several weeks, and even if the tenant does not have all of the money due within five days after the trial, it is usually possible to bring an order to show cause to get a brief extension. In this way, a knowledgeable tenant does not have to waive her right to present defenses at a trial in order to have a reasonable amount of time to get whatever money is due.

Addressing the Court

Each judge has his or her own philosophy and responds differently to various situations. It is a good idea to find out about the judge your case is assigned to. The landlords' attorneys appear before the same judges day in and day out and already have this information. A tenant who does not know whether a judge is generally more sympathetic or less sympathetic to a particular kind of argument is at a disadvantage. In general, it is important to be assertive without being arrogant, and remember that while Housing Court is usually an emotional experience, what convinces a judge is logical argument backed up by proof.

Nonpayment Proceedings

Not every nonpayment proceeding involves a genuine threat of eviction, but familiarity with the following concepts will lead to a better result in all cases.

Legal rent: The maximum rent a tenant owes is limited by the lease and/or the laws and regulations affecting their home, such as rent stabilization, rent control, and the rules for public housing or subsidized housing. You should learn the correct legal rent for your apartment, because landlords routinely bring eviction proceedings seeking more than the legal rent. They also often seek "late fees," "attorney's fees," and other additional charges you do not have to pay.

Abatement: There are 3 million housing-code violations on the books, and many of them involve the apartments involved in nonpayment proceedings. Although the state "warranty of habitability" law requires judges to reduce the amount of rent owed if repairs have gone uncorrected, and the judges have access to the code violations through computer terminals in each court, almost no judges will look at the computer on their own. It therefore falls on the tenant to prove that conditions exist, which can be done through testimony, photographs (always worth their weight in gold), requesting an inspection at the beginning of the case, and getting the judge to "take notice" of the violations already on record, either through the computer terminal or obtaining a certified copy of the written records from the city code-enforcement office, which is now located at 39 Broadway but may be moving soon. Note: even if a condition has been corrected, the law entitles a tenant to a rent abatement for the entire period it existed.

Notice: You will also have to prove that these conditions were brought to the landlord's attention. This is called "notice."

Access: Many landlords will claim that they tried to fix the conditions (even after first denying that they existed or that they knew about them) and that you denied them access to the apartment. For this reason, whenever you get a letter asking for access, you should answer in writing and keep a copy. Similarly, complaints about repairs should also be in writing.

Time to Pay

With secure, well-paid jobs increasingly scarce, more and more people find themselves falling behind in their rent. Knowing Housing Court procedures can enable a tenant in temporary financial difficulties to get a few weeks or months to catch up.

One point to consider is that the more defenses a tenant raises, the more time it will take the court to resolve them. These defenses can include questioning the legality of the rent demanded, asking for an abatement based on bad conditions in the apartment, and simply requiring the landlord prove everything he needs to prove in order to get a judgment, including that he owns the building, registered it with the city and state, and followed the required procedures to start the case by personally serving the tenant with the papers.

If the papers were served some other way, such as one copy being taped to the door and another mailed (called "nail and mail"), you can insist that the landlord prove he complied with the law, which requires several "reasonable" attempts to deliver the papers in person before he is allowed to use another method of service. The person who allegedly made these attempts would have to come to court and testify at a "traverse hearing."

Holdover Cases

In some cases, the owner is not suing for rent, but claims that he has the right to evict the tenant or occupant even if they offer to pay the rent. This kind of case is called a "holdover." There can be many bases for a holdover, including: a claim that the tenant no longer uses the apartment as her primary residence; that she has sublet the apartment without permission; that she has "too many" roommates; that she is violating her lease by having a dog or a washing machine or in some other way; or that the owner wants to use the apartment for his own family.

These cases can be very complex, and many successful defenses are possible. Again, it is critical to get expert advice and accurate information as early as possible when facing a holdover case, and it is often advisable to find a competent lawyer.

Organize

The final way to prevent evictions is to organize. If one tenant in a building is having problems, chances are other tenants in the building are too. By working together in a tenants' association, tenants can force the owner to make concessions that no individual could win on their own.

For help organizing your building, or to get information on any of the issues raised in this article, call Met Council's tenant hotline at (212) 693-0550, on Monday, Wednesday, or Friday between 1:30 and 5:00 p.m.