Nonpayment of Rent Eviction Cases

Nonpayment of Rent Eviction Cases

What is a "nonpayment proceeding" in Housing Court?

In a nonpayment proceeding, the landlord is asking a housing court judge to award a judgment against the tenant for the unpaid rent as well as a "judgment of possession" and warrant of eviction, which allow the landlord to have a city marshal evict the tenant if the balance of the rent owed is not paid. 

The basics of a non-payment of rent case

Things to know if you're facing a non-payment of rent case:

  • A nonpayment proceeding is a lawsuit that requires the tenant to go to court to answer. If you fail to appear and answer, the court may award a judgment to the landlord and issue a warrant of eviction to the city marshal.
  • You can avoid eviction by paying the amount ordered by the court. As long as the warrant of eviction has not executed, you can end your case by proving that you have paid the money tha is owed, and once you do so, your landlord cannot cotinue to seek your eviction.
  • You can dispute the amount that your landlord claims that you owe. You can defend yourself by proving that you have already paid the rent that is being demanded. You can also raise other defenses that affect the amount of rent the landlord is entitled to recover (see below).
  • You have a right to raise defenses. Common defenses include: that you paid all or part of the rent demanded; that you are being overcharged; that your landlord waited too long to sue you for old rent arrears; and that you have not gotten services or repairs that you are entitled to.
  • You can ask for a rent abatement (a reduction in the amount of rent owed) based on your landlord's failure to timely repair or correct unsafe/unhealthy conditions or to provide required services.
  • Your landlord can only sue to evict based on unpaid rent. While landlords in some cases may be allowed to charge late fees, surcharges for air conditioners and washing machines, and legal fees, you can object to any non-rent charges being part of a non-payment of rent case or judgment. Many tenants unknowingly agree to these charges being included in a settlement or judgment.
  • Payment plans are common, but require an agreement between the landlord and tenant. You may be able to work out a payment plan as part of a settlement of your case, but if the landlord is not willing to let you pay back arrears over time, the housing court judge cannot order the landlord to accept a payment plan.
  • If you agree to or are ordered to pay within a certain time, and are unable to do so, you have a right to ask for more time to pay before you are evicted. If you fail to pay what you owe according to the agreement or court order, you can request more time by going to housing court and submitting an "order to show cause" to ask for another court date and for the opportunity to come to a new agreement.
  • A limited amount of rent arrears assistance is available to certain tenants. If you qualify for assistance in paying rent arrears from the government or from a charity, many housing court judges will give you time to get that help.
  • There are a number of resources available to tenants facing an eviction. You can seek out legal representation, but if you are unable to obtain a lawyer, there are numerous organizations that provide information, assistance, and guidance to tenants. Make sure to get your information and advice from people who are there to help you, not from your landlord or your landlord's attorney.

    Legal Disclaimer:

    The information contained on this web page does not constitute legal advice and must not be used as a substitute for the advice of a lawyer qualified to give advice on legal issues pertaining to housing. For more, visit our page on Finding a lawyer.

    This information pertains only to tenants living in New York City.

    Many of your rights depend on the type of housing you live in or your type of tenancy. You may be subject to different laws and have different sets of rights than even neighbors in your own building. Learn which rights and responsibilities apply to you.

     

    What is a nonpayment proceeding?

    In a nonpayment proceeding, the landlord claims that you owe rent. If the landlord wins, the court will award what are known as a money judgment and a judgment of possession (or "possessory judgment"). A money judgment permits the landlord to go after any assets you might have, such as bank accounts or your salary, to collect what is owed. The possessory judgment means that if you do not pay the amount determined by the court, the landlord can request a warrant of eviction and have a city marshal remove you from your home. If you pay the money judgment on time, the possessory judgment is satisfied and you cannot be evicted. 

     

    Can my landlord evict me or hire a marshal to evict me without first taking me to court?

    No. A landlord in New York City can legally evict a residential tenant only by obtaining a judgment of possession from a court and then having a marshal apply for a warrant of eviction. An actual, physical eviction can legally happen only after the tenant has been given notice of the court proceeding and an opportunity to come to court to present a defense. It is illegal for a landlord to force a residential tenant out by other methods, such as by changing locks or cutting off services. 


    What must happen for my landlord to bring a nonpayment of rent case in court?

    1. Your landlord must demand that the rent be paid, how much rent is owed, and that if not paid, that you will be evicted. This notice does not have to be written; it can be done verbally.
    2. Three days after a written demand for the rent is made, or any time after an oral rent demand, your landlord may file a nonpayment proceeding at Housing Court and serve papers on you. The court will also mail a notice of the court proceeding, directing you to answer the petition within five business days.
    3. You must answer the petition in person at the Housing Court Clerk's office. The Clerk will then give you a court date.
    4. On the court date, you have the opportunity to present defenses to a Housing Court Judge. However, in many cases, tenants and landlords meet in the courthouse and sign an agreement called a 'stipulation'. You have both options, and there are advantages and pitfalls to both. As a general rule, tenants are cautioned against signing anything they do not understand. Consult an attorney whenever possible when eviction proceedings are concerned, and if this is not an option, to talk to an experienced tenant advocacy organization, seek out resources and help, and educate yourself.

    Note: If you pay within the time allowed, your landlord should not proceed with the case, but you receive papers directing you to appear in court even though you don't owe money, you should go to court. Your failure to appear will result in a default judgment in favor of your landlord - meaning, that your landlord will win the right to evict you from your apartment and collect the money that he/she claims you owe. 

     

    How is my landlord supposed to serve me eviction papers?

    If your landlord files papers in the court to begin a nonpayment proceeding, the landlord is required to have the court papers "served on" (delivered to) you in one of these ways:

    1. By having someone not involved in the case (usually a process server) hand you the court papers personally,
    2. By having someone not involved in the case hand the papers to an adult (over 18) who lives or works in your home, and also mailing them to you by certified and regular mail.
    3. If you are not home, by taping the papers to your door or slipping the papers under your door , and then also mailing them to you by certified and regular mail 

    What do I do when I receive paperwork from the court?

    When you are served with a nonpayment petition by the landlord, you have five days to answer it in court. It is best to prepare a written answer, explaining your side of the story. Make three copies and mail one to the landlord's attorney, file one in court and keep one for your records. You can also state your answers to the clerk in the housing court, but before leaving the clerk's window, check the answer form to make sure that everything you said was marked on the paper. 

     

    What if I cannot make it to court to file an answer? Can someone go on my behalf?

    You should make every effort to answer in person if possible. Answering in writing or sending someone to answer in your place are not ideal.


    The courts have said that only the person named on the petition can answer. If that person is unavailable, there is a Certificate of Unavailability, and there are also instructions for answering in writing.

    Some advocates have seen cases where people other than the named tenant are permitted to answer by the clerks, but on the return date they are not permitted to defend the case unless they have written authorization from the Respondent. 

     

    I heard that most tenants in nonpayment of rent evictions don't go to trial, but instead they sign a stipulation (an agreement with the landlord). How does that work, and what should I be careful about?

    There is a tremendous amount of pressure placed on tenants to settle nonpayment cases by signing an agreement or contract known a stipulation. Even your judge may pressure you to sign a stipulation, in part because the housing courts are so overwhelmed with cases. Unfortunatly, tenants are usually at a disadvantage when negotiating stipulations, because most tenants don't have a lawyer and are not knowledgeable about the process. Over 90% of tenants are not represented by lawyers, while nearly all landlords are. With no right to a lawyer in housing court, you may have a difficult time getting a lawyer, and if that's the case, seek out all the advice you can get, and educate yourself.

    Stipulations are signed by the judge and become a binding court order between the landlord and tenant. You are not required to settle the case, and it will be up to you to decide whether it is in your interests to do so.

    It is very dangerous to sign a stipulation requiring you to do something that you are not positive you will be able to do, such as pay a certain amount by a specific date. A tenant can face several consequences if they agree to do, something they cannot comply with. Many people have been evicted because the unnecessarily agreed to overly optimistic amounts and dates. This is because the agreements, as written up by landlords' attorneys, frequently say that if the money is not paid by the agreed date, the landlord can enter a judgment and obtain a warrant of eviction.

    Do not sign an agreement that has language and provisions you are not comfortable with, or that you do not understand. You have the right to negotiate over the language of any stipulation, and to object to any provision. You may have more leverage than you realize, because often the landlord wants to settle the case and will compromise with you if you stick to your guns. You can also ask the judge, or their law assistant, to help work out an agreement.

    Keep in mind is that in a nonpayment of rent eviction case, your landlord cannot evict you if you pay what is ordered by the court, or agreed to in court, on time. In many instances, the issue is just that tenants need more time to come up with the money. Sometimes the amount of money owed is in dispute, and tenants simply need to come up with proof that they don't owe the amount being demanded by the landlord. Decide what you need, and what will work for you. That will help you determine whether it's in your interest to sign a stipulation, and if so, what the stipulation should say.

    Use the resouces available to you inside the housing court. Every housing court has a pro-se attorney's office, located in what is sometimes called the "resource room". Also, a nonprofit agency called Housing Court Answers staffs information tables in the housing courts. As a last step, you can tell the judge that you aren't entirely sure what the stipulation means and what the consequenses are, and him/her to explain what the stipulation means in plain language before it is signed. 

     

    What will happen if I end up going to trial in my nonpayment of rent case?

    If the case is not settled or withdrawn by the landlord, it will go to trial. If you are unable to obtain a lawyer, you will be at a certain disadvantage along with 90 percent of the other tenants in housing court. However, there are things you can do to help you be heard. Be confident and organized. Think about what the issues in the case are likely to be, and how you intend to prove your side. Photographs, witnesses, letters and other documents will be useful. The judge, or the clerk's office, should answer your questions about how to subpoena any records you feel are necessary. 

     

    How can I defend myself in a nonpayment of rent case in housing court?

    Common defenses about the rent being demanded:

    • Were you asked to pay the rent, either orally or in writing, before receiving Court papers?
    • Did the landlord refuse to take your rent?
    • Is the amount of rent being claimed by the landlord incorrect? The rent being claimed may be incorrect because it is not the legal registered rent. (This applies to rent stabilized and rent controlled apartments. To find out the legal registered rent or rent history for your apartment, you can contact the Division of Housing and Community Renewal in your borough.)
    • Is the monthly rent being claimed different from the amount in your lease?
    • Has the rent been partially or fully paid?

    Common defenses about the condition of the apartment:

    • Are there conditions in your apartment, which need repair or services that are not being provided?
    • Are you receiving public assistance and there are Housing Code violations in your apartment or building?
    • Are you living in an illegal apartment? An illegal apartment is one in which the landlord does not have a valid Certificate of Occupancy from the Department of Buildings.

    Other common defenses:

    • Did you pay for repairs, utilities, or services, that should have been provided by your landlord?
    • Has your personal property been damaged because your landlord failed to provide proper repairs or services?
    • Do you have any other reason(s) for believing that you do not owe the landlord some or part of the amount being claimed?
    • Does the rent demand and petition accurately state for which months you owe rent?

    If your answer to any of these questions is yes, you might want to put in a counterclaim. A counterclaim is a specific amount of money that you feel the landlord owes you. You should have receipts to support any counterclaims you may make. Please be sure to briefly state the reason(s) for counterclaim and the specific dollar amount being claimed. 

     

    What if I simply cannot afford the rent?

    Your inability to afford the rent is not a defense. You may be able to raise defenses about why you do not owe the amount being demanded. For rent you do owe, you also may be able to work out a payment plan with the judge, or with the landlord or the landlord's attorney. You will need to find a way to pay rent that you do owe to stop the eviction.
    Payment plans are very common, but there are dangers in signing a settlement agreement - called a stipulation - if you don't have the advice of a tenant attorney or an experienced tenant advocate. Many tenants sign papers that they don't completely understand, unknowingly agree to terms that harm them, and unnecessarily give up rights that they have.
    There are limited resources available to provide rental assistance to low-income tenants, and to provide one-time assistance to tenants to help them avoid an eviction. Read our page on tips if you just can't afford the rent. 

    Can I raise the fact that I have not gotten repairs or services as a defense?

    Your landlord's failure to make necessary repairs or provide necessary services is a valid defense for nonpayment of rent. Witholding rent for this reason is legal, though it does carry consequences that you should consider - indlucing ending up on the tenant blacklist, or even eviction if you fail to show up to your court date and the landlord gets a default judgement. Please read these considerations in deciding whether to withold rent, and don't spend the money - you may have to pay some or all of the rent back.

    A tenant's defense to a nonpayment proceeding based on the lack of repairs is called the affirmative defense of breach of the warranty of habitability. In plain English, this means the landlord broke his legal obligation to keep the apartment in good repair or provide required services like heat and hot water. Be specific in your answer about the unsafe or unhealthy conditions in your apartment, about the landlord's knowledge of them, and about how long they have existed. If you prove this defense, the court may give you a credit against any rent owed, and will order the landlord to correct any remaining violations. It is important to ask for an inspection when you first answer the petition, and it is also usually a good idea to take photographs of the conditions. The amount of a rent abatement (deduction from the amount you owe) is up to the judge, so don't count on a particular amount. You can also reach an agreement with the landlord that addresses the conditions in the apartment. Prepare youself by reading about housing court stipulations.

     

    What is a 'General Denial'?

    In order to succeed in his case against you, the law requires the landlord to prove their ownership of the building; what the lawful rent for your apartment is and that the building is properly registered with various city and state agencies. Often you will not have direct knowledge of whether or not these conditions are met. If your answer includes a general denial, the burden remains on your landlord to prove compliance with all of these conditions.

     

    What if the rent being demanded includes rent from a long time back? What is latches/stale rent?

    Sometimes after a building has been owned by many owners, or has been neglected a period of time, rent arrears may build before a tenant is taken to court. If you are prejudiced by being exposed to a possessory judgment for a large amount of rent because the landlord waited too long to start a case, you should claim 'latches', also known as 'stale rent' in your answer.

     

    How can I dispute the amount that my landlord claims that I owe?

    If you have specific information that the rent claimed is above the legal rent (in a rent stabilized, rent controlled, or subsidized housing unit), or that you have paid rent for some or all of the months claimed in the petition, you should say so in your answer. Bring documentation to prove your points (canceled checks or copies of money orders, etc.)

     

    What to do if the amount owed is due to problems with a rental assistance program (Section 8, SCRIE, DRIE, or Public Assistance)?

    If you fell behind in the rent because of problems obtaining Public Assistance, Senior Citizen Rent Increase Exemptions (SCRIE), Section 8 or other subsidies put it in your answer. The court will probably give you a reasonable amount of time to resolve these problems.