A tenant may be evicted for holding over when he/she remains at the premises after being notified that their month-to-month tenancy is being terminated or upon the expiration of the lease. The most common hold over proceeding occurs when the tenant either does not have a lease or the lease has since expired and a month-to-month tenancy is created. Before starting a hold over proceeding for a month-to-month tenancy the tenant must be served a 30 Day Notice. Timing for the 30 Day notice is crucial as the 30 days does not necessarily start running at the time of service and the tenant may be allowed to stay well more than 30 days. A 30 Day Notice needs to be served before rent is due (whether it is the first of the month or the fifteenth of the month) and will expire the day before rent is due again (at least 30 days after the notice is served).
Who Are We?
The Law Offices of John Nacca is a full service Rochester law firm dedicated to representing our clients with efficiency and integrity. Our legal practice extends to all of Western New York and our clients range from individuals to large companies. Our mission is to zealously advocate for our clients while at the same time providing each with individualized attention. We pride ourselves on our longstanding relationships with our clients and treating our clients as family. Thank you for visiting our site. We welcome the opportunity to work with you.
The Landlord Tenant Process
The primary purpose of a landlord tenant summary proceeding is to allow the owner/landlord to regain possession of the premises. There are several different ways in which one can evict a tenant including but not limited to:
A tenant may be evicted for not paying their rent. Depending on the judge, a cap may be put on the number of months of back rent you can collect (generally spanning between 3 and 8 months). Therefore, it is wise to start eviction proceeds sooner rather than later- if a tenant does not pay rent for a year you may be precluded from collecting all 12 months. Before a non-payment proceeding can be started, you must notify the tenant that they owe rent (a 3 day notice). You may notify the tenant orally or give them a “3 Day Notice to Quit or Pay” letter. If notifying the tenant in writing, the 3 day notice must be served properly. If after the three days rent is still owed, a non-payment petition may be filed with the court. Upon contacting our office to start an eviction, we will send you an eviction referral form to complete. When filling out the form, please be sure to provide a breakdown of rent owed for each month and whether or not you would like us to try to work out an agreement with the tenant. Additionally, a copy of the lease (if one exists) must be provided so we can be sure to get a judgment for late fees and attorney fees. Please keep in mind that judges have total discretion to deny legal fees, late fees or even reduce the judgment amount. It is important to remember that the only defense to a non-payment petition is payment. Therefore, if the tenant shows up to court with all rent owed, the petition will be dismissed.
A tenant may be evicted for being an “objectionable tenant”. An objectionable tenancy may occur when the tenant repeatedly violates the lease, is engaging in unlawful conduct or other serious disturbances. If there is a lease, it is important to read the terms of the lease as it may outline the procedure the landlord must follow. It is important to remember that the tenant’s conduct must truly be objectionable. Examples of objectionable conduct include repeated encounters with the police, the assignment of nuisance points to the property and repeated behavior that is in violation of the lease (ie. Having a pet when pets are not allowed; frequent loud behavior that is disrupting neighbors, etc.). A tenant may NOT be evicted because they are annoying, because they pay their rent but pay it late every month or because you simply want to get rid of the tenant.
The Court Process
It generally takes at least two (2) weeks to be heard in Rochester City Court after the petition has been filed. Not only does the court’s schedule dictate how soon we can get into court but the legal requirements of serving the tenant does as well. Town Courts have their own dockets to adhere to- some towns may allow us to choose our own date, other courts may only schedule evictions on certain days of the month (ie. First Tuesday of the month, etc.). It is important to provide us with a copy of the lease (if one exists) and an idea of what you would like to happen in Court. Some landlords prefer to reach an agreement in court (payment plan) while others want the tenant out if the tenant does not show up with all rent owed. While we cannot guarantee what will happen in court it does make it a smoother process if we are aware of your expectations.
Almost every judge in every court will require the attorney to speak with the tenant before appearing in front of the judge. A lot of times an agreement can be reached with the tenant and presented to the judge. In the event an agreement is not reached, we will go in front of the judge and have him/her make a decision. Depending on the disagreement, the matter may be scheduled for a hearing on a different date to allow both the landlord and tenant the opportunity to present witnesses and/or evidence. If a hearing is scheduled, we will notify you and let you know if we need additional information and/or your appearance. Please be advised that the judge has the discretion to determine the judgment amount to be awarded (if any). Additionally, the judge can determine if a warrant is granted and the stay date. We will certainly do our best to give you the results you are seeking but keep in mind that the judge can rule over our objection and make his/her own determination.
After we are in court, we will notify you of the court results. If the warrant is stayed (meaning held off to some point in the future) you will need to call our office and let us know if the warrant needs to be served. Once we receive notice that the warrant needs to be served we will call the Court. The Marshal will usually receive the warrant within a day or two after calling it in and he will serve it as soon as he can. A warrant of eviction gives the tenant 3 business days to leave the property. Weekends and holidays are NOT included. If the tenant is still there after 3 business days, you may call the Marshal directly to arrange a lock out. The Marshal does not notify us of exactly when he served the warrant so if you feel that the 3 business day time period is coming to an end, you may call the Marshal directly to arrange the lockout. We usually use Marshal Joe Polizzi but are certainly more than happy to send the warrant to a marshal of your own choosing. Please be advised that it may take several days for the Marshal to receive the warrant of eviction. This is generally the case when an agreement was made and the tenant defaults on the agreement. When the tenant does not live up to the terms of the agreement we have to submit an affidavit to the judge explaining the default. After the judge reviews the affidavit, he/she will sign the warrant of eviction and send it directly to the marshal.