Originally Posted by kmg5019
Hello, I have a tenant in a two-family home that is now 9 days late on rent. I would like to have them evicted because they are just problem tenants. How do I go about doing this step by step?
NYS eviction is a legal process with procedures which must be strictly followed. The landlord CANNOT just call the police and have a tenant evicted because he wants the tenant out. The tenant has the right to due process.
Under NYS Law, a landlord seeking to evict a tenant for non-payment must first give the tenant a chance to pay, by giving the tenant a three-day (3 day) notice in writing, stating that the tenant has three days to pay all the rent in full or the tenancy will be terminated.
The eviction can be started following the three (3) day notice if no payment is received.
The landlord then files a petition and obtains a hearing date. The hearing date MUST be scheduled between five (5) and twelve (12) days after the tenant is served.
Service is made either by having a third party (not the landlord and it is not particularly wise to have a relative of the landlord do the service) personally hand the petition to the tenant. If the tenant is avoiding service it may be made by nailing the petition to the door and sending a copy by mail (nail and mail) as soon as possible - I would mail it the very same day. An Affidavit of Service will be provided by the Court and it must be completed by the person who does the service. If service is made by nail and mail and the tenant does not appear in court the landlord will get an eviction warrant but will NOT get a money judgment for unpaid rent - however the landlord will get the warrant and will have to go to Small Claims Court in a separate action and sue for unpaid rent.*
If the judge finds that the tenancy is terminated because of non-payment he/she will sign a warrant of eviction. The landlord may also obtain a money judgment for the arrears due in rent if personal service was made and the tenant makes a personal appearance in court.
Once the warrant of eviction (this is NOT the same thing as an arrest warrant) is signed by the Judge the landlord then submits the warrant to the sheriff. The sheriff must give seventy-two (72) hours notice to the tenant before enforcing it and evicting the tenant.
The landlord has no right to garnish wages without a money judgment. *If the landlord does not get a money judgment during the eviction proceeding, he may sue the tenant in small claims court at a later date.
The landlord tenant law in NYS is favorable to the tenant. There are strict procedural rules and if the tenant comes to Court with the past due rent and late fees the landlord must accept them and the Judge will NOT order eviction. The landlord would then have to attempt to evict for breach of contract or some other grounds.