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jpraverta · May 6, 2009, 12:49 PM

My tenants occupy the upstairs of my home in Babylon NY. I put the house up for sale in November 2008 and informed the tenant of such. I was leaving the country and left them deposit slips to deposit the rent into my bank account.

When December rent was not paid, I called the tenants and he told me that they were keeping it as their securuty deposit as they were moving at the end of December. However they are still in the house.

I served them with a 30-day Eviction Notice in February and I called him but he said he never received the notice although my lawyer said it was served by a process server. In the meantime he locked the doors and the agent was unable to get in to show the house.

A family member spoke to the wife and she agrred that the agent can show the house as long as she was informed. We were able to have one open house. The agent called the wife again last week because she had potential buyers interested in seeing the house. She was told by the wife that first her mother was having surgery and she would not be there, then that she was sick and so was her daughter. When the agent called on Monday night, the husband answered and told her to 'F... Off" and that no one is coming into the house as long as he lived there.

I have since found out that at the end of November they changed the name on the utilities accounts but they have not paid any rent since November 2008.

They are still living in the house and has disallowed entry to the home by the real estate agent. I am not in a position to return to the United States, so how do I rectifiy it inexpensively? Can they disallow access to a home that I own?

ScottGem · May 6, 2009, 12:58 PM

When they didn't pay December, you should have filed a pay or quit notice against them. They are not entitlted to decide how to use the Security deposit.

You cannot serve them with an eviction notice. Only a court can order an eviction. What you served them with was a vacate notice. However, since you have let so much time elapse this is what I would do.

Have your attorney serve them with a 3 day pay or quit notice. The amount they have to pay is 6 months rental plus late fees since they have not paid since Decemeber.

If they do not pay in full after three business days, your attorney files for an eviction order. This will require a hearing, but your attorney can represent you. At the hearing they will be given the opportunity to pay what they owe. If they don't, you get an order for eviction. This will give them a few days to vacate. If they still haven't vacated, then you hire a sheriff to physically remove them. You then file suit for the arrears and any damages not covered by the security.

jpraverta · May 6, 2009, 01:56 PM

Sorry, it was a 30-Day Notice to Vacate and it was sent through the lawyer's office. I did not mention that there is no lease between the tenants and I. Does this change things in anyway?

ScottGem · May 6, 2009, 02:22 PM

No, the absence of a lease doesn't change anything. You MIGHT be able to use that notice to immediately file for an eviction order. But I would play it safe with the 3 day pay or vacate. I'm just concerned that the fact you did nothing for several months will have an affect on getting the eviction order. Since I doubt if they will be able to come up with 6 months rent waiting another 3 business days shouldn't be a problem.