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Holdover Proceedings

IF YOU HAVE ANY QUESTIONS REGARDING LANDLORD-TENANT LAW, YOU MAY CONSULT WITH AN ATTORNEY. THE COURT CANNOT PROVIDE LEGAL ADVICE.

Holdover Forms

Most Landlord-Tenant summary proceedings, other than for non-payment of rent are called "holdover" proceedings. They include proceedings by a Petitioner to remove tenants whose term has expired, or those whose one month's notice has been given.

A proceeding to evict a tenant whose written lease has expired may be commenced at the end of the lease without a notice of termination given as long as the lease does not require a notice. The landlord may file a Notice of Petition and Petition for eviction with the Court.

Monetary Jurisdiction - (Section 204 UCCA)
The Court can render judgment without regard to amount.

Geographical Jurisdiction - (Section 204 UCCA)
Property must be located in whole or in part within the City.

Filing Fee: $45.00 which must be paid to the Court. The court will accept cash, money order, or in some instances, checks.

Required Forms:
1. One Month's Notice

The One Month's Notice is a notice given to the tenant, renting on a month-to-month basis, requiring that the tenant surrender the premises within one month.

(Note: If the only complaint is that the tenant has failed to pay rent, follow the instructions for non payment). It is important to note that the One Month's Notice must be given one month prior to the next rental date. In other words, if the rent is due on June 1st and the notice is served on May 31st or before, the notice may require the tenant to vacate on or before June 30th. However, if the notice is served on June 1st, the notice could not legally require the tenant to move before July 31st which would be one month from the commencement of the next rental period.

2. Affidavit of Service (for service of One Month's Notice)
One month's notice must be given to the tenant. The notice may be oral or written. After the tenant has been served with the One Month's Notice and has failed to vacate the premises, a landlord-tenant proceeding can be initiated in the City Court by completing and filing the following documents:

3. Notice of Petition
This paper can be issued by an attorney, the Judge or the Clerk of the Court. If a Judge or the Clerk of the Court is requested to sign the Notice of Petition, the Petition must be completed by the landlord and submitted to the City Court offices before it is served on the tenant.

Note: When completing the Petition (see below) and Notice of Petition, the landlord must contact the City Court Clerk's office in order to get a court date which must appear in the Notice of Petition.

The court date must be no sooner than 5 days or later than 12 days from the date that the tenant is served. When substitute service is used, service is complete upon filing the affidavit of service. (You must count Saturdays, Sundays, and holidays in calculations but cannot count the service date). The landlord and/or an attorney and the tenant(s) must appear on the court date.

4. Petition
The Petition is a document which must be completed by the landlord and attached to the Notice of Petition and the One Month's Notice (if applicable) which was previously served on the tenant. The landlord is to sign this document and sign the verification in front of a Notary Public.

When the documents are completed and a court date has been provided and the Judge, Clerk of the Court, or attorney has signed the Notice of Petition, then and only then can the tenant be served with the Notice of Petition and Petition. The Notice of Petition and Petition must be served on the tenant not less than 5 days and no more than 12 days before the Court date.

The Notice of Petition, Petition, One Month's Notice (if applicable) must be filed with the Court along with the $45 filing fee. The original is filed with the court, a copy for the files, and one for each person being served.

5. Affidavit of Service (for service of Notice of Petition and Petition)
This Affidavit of Service is filed with the Court after service of the Notice of Petition and Petition on the tenant. The Notice of Petition and Petition must be served by a person 18 years or older. The person who serves the papers must not be a party to the action. The landlord or owner of the property may not serve the Notice of Petition and Petition.

If possible, personal delivery of the Petition and Notice of Petition should be made upon the respondent-tenant. In cases where personal delivery is not possible, service may be made upon an individual of suitable age and discretion residing at the property followed within one day by a first class and registered or certified mailing or, if the process service has exercised reasonable application and was unable to serve the Notice of Petition and Petition on an individual, by "nail and mail". That is; posting the papers on the door of the residence of the respondent-tenant AND within one day, mailing a copy of the papers by certified mail or registered mail (Section 735 RPAPL) and by first class mail.

Types of Service and Filing of the Affidavit of Service

Personal Delivery: Actual delivery of the notice or process to the person to whom it is directed (also termed actual service).

Substitute Service: Any method of service allowed by law in place of personal delivery. There are two types.

Service of an individual of suitable age and discretion residing at the premises followed within one day by a first class mailing and a registered or certified mailing. If substitute service is used, the Court often does not award a money judgment.

"Nail and Mail": Posting the papers on the door of the residence of the respondent/tenant AND within one day, mailing a copy of the papers by certified mail or registered mail (Section 735 RPAPL) and by first class mailing.

The Affidavit of Service must be filed with the court at least 72 hours after service and with substitute service at least 5 days before the return date. FAILURE TO FILE THE AFFIDAVIT OF SERVICE WITHIN 72 HOURS OF THE SERVICE DATE MAY RESULT IN THE DISMISSAL OF THE CASE.

If, at any time, it is determined by the landlord that the Court date is no longer needed, the landlord should notify the Court, in writing, as soon as possible.

Note: The $45 filing fee cannot be returned.

If the Court orders the tenant to be removed from the premises, the Court may sign the following document:

6. Warrant of Eviction
If the Court orders a Warrant of Eviction, the Court will sign the Warrant of Eviction which enables the local law enforcement agency (i.e.: Sheriff, Police, Marshal, City Constable) to remove the tenant(s) from the premises.

The warrant form should be filled out completely. The heading should include both the Petitioner/Landlord and the Respondent/Tenant's full name and complete address. The Index No. is the City Court index number. The Tenant's name should be placed after the "TO" and all blank lines are to be completed with all necessary information. All addresses are to include the house number, street, city, state, and zip code.

SOME COURTS MAY GENERATE THE WARRANT OF EVICTION FOR YOU.

NOTE: There is a mandatory 72 hour waiting period between the time you serve the tenant with a warrant and when the tenant may be removed from the premises by the local law enforcement officer. The Warrant of Eviction must be executed during daylight hours.

 

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