Holdover Proceedings Private Dwellings

What is a holdover case?

A holdover case is an eviction case brought by your landlord to evict you for a reason or reasons other than nonpayment of rent.Holdover cases often involve complex issues. Try to get legal assistance as soon as you receive a holdover petition. If you are unable to speak to a lawyer before your court date, you can ask the judge for a new court date or an adjournment to get legal advice. Most holdover cases start with certain notices, and you must receive these notices in specific ways. There are also reasons that landlords commonly seek to remove tenants that are unique to certain types of housing.

What are some of the reasons for starting a holdover case?

In a holdover case, your landlord must tell the court why he or she wants to evict you. The reason or reasons should be listed on your holdover petition and may involve the following:

  • You are a month-to-month tenant (a tenant without a lease) and your landlord no longer wants you as a tenant.
  • Your lease has expired, you are not entitled to a renewal, and the landlord wants you to leave.
  • The landlord claims you are a squatter (that you came into the apartment without the owner’s permission) or you are a licensee (you came into the apartment with permission of another tenant, but not the landlord) and the landlord wants you to leave.
  • You violated a term or terms of your lease. For example, you have a washing machine or a dog in your apartment in violation of your lease.

 

  • You, a guest, or a family member created a public nuisance or is involved in criminal activity.

 

  • You repeatedly refused to allow the landlord access to your apartment at a reasonable hour when the landlord had good reason to gain access, such as in an emergency or to make repairs.

Note: If you live in rent-regulated, public, or subsidized housing, you may have additional rights, and the process might be different.

 

What should happen before I receive a holdover petition?

In most cases, you should receive one of the following notices before a holdover case is started:

10 Day Notice to Quit if you are a licensee or a squatter. A licensee is someone who had permission to be in the apartment without a rental agreement. A squatter is an occupant of the premises without permission from the landlord or a tenant.

30 Day Notice to Terminateif you are a rent-paying tenant without a lease or if you are a tenant in unregulated housing whose lease term has not expired.

These notices will tell you why you the landlord is trying to evict you. After the time period required in these notices has passed, the landlord may start a holdover case against you by serving you the holdover petition and notice of petition. However, if your lease has expired and the landlord has not collected any further rent, the landlord may serve a holdover petition without giving you any prior notices. The landlord will send you a notice to cure if you are violating the lease or causing some other kind of problem. The notice to cure gives you a chance to fix the problem. If you do not fix the problem, the landlord must then serve the notice to terminate before starting the case.

How should I receive these papers?

Most notices and the petition and notice of petition must be served by someone who is over 18 and who is not part of the case. The service can be personal service, substitute service, or conspicuous service. Personal delivery means the court papers are handed to you. Substitute service means the papers are handed to an adult or appropriate person who lives or works in your home and mailed to you by certified and regular mail. Conspicuous service means the papers are either taped to or slid under your door and mailed to you by certified and regular mail. Your landlord must make a reasonable attempt to serve you by personal delivery or substitute service before he or she serves by conspicuous service.

What do I do if I receive a holdover petition?

When you receive a holdover petition, read it carefully to determine the reason or reasons why your landlord wants to evict you. The notice of petition will give you the time, date and room number for the court appearance. If you wish to fight the eviction case, you must appear in Housing Court at the time and place indicated.

What are some defenses for a holdover?

If your landlord is claiming that you violated your lease, you can dispute your landlord’s claim(s) and present evidence showing that you did not violate your lease. You may also have a defense if your landlord knew about the lease violation(s) and gave or implied consent. Your landlord may have implied consent to a violation if he or she (or someone who works for him or her, such as the superintendent) knew of the violation and did not do anything about it for a long time. (For example, if the landlord knew you had a washing machine or a dog for 3 months before the case.)
If your lease or tenancy has expired and you live in an unregulated apartment, your defenses are very limited, and you will likely have to leave your residence. However, if you believe the reason for your landlord not renewing your lease or tenancy and starting a holdover against you is that you complained about conditions in your apartment or because you tried to enforce certain rights as a tenant, you may have a defense called “retaliatory eviction.”If the judge accepts your retaliatory eviction defense, the judge may throw out the holdover case or give you time to move.
In addition, you may also have other defenses available based on your landlord’s failure to follow proper court procedures. The following are examples of these defenses:

  • You did not receive the appropriate notices or other documents.
  • The documents were not served on you the right way.
  • Your name is not on the documents.
  • The person or company bringing you to court is not the landlord or the owner of the building. If you are not sure who the owner of the building is, you can call 311 or search the HPD website online.

What is use and occupancy?

While the landlord cannot collect rent from you during the case, you may be asked to pay use and occupancy. The amount of use and occupancy is decided by the judge and is based on the reasonable rental value of your apartment. Usually, this is decided by the agreed amount of rent you were required to pay before your tenancy expired. Landlords typically request the Court to grant them use and occupancy in the holdover petition. However, you may ask the judge or try to reach an agreement with your landlord not to pay use and occupancy.

What do I do at my court hearing?

On the day of your court hearing, you may be approached by the landlord’s lawyer or the judge’s assistant and asked to settle the case by negotiation. For example, if you are a month-to-month tenant without a written lease, you might agree to move out by a certain date and the landlord might agree that you don’t have to pay any “use and occupancy” or rent during the period before you leave. If you make this type of agreement, be reasonable in your expectation of being able to move out quickly. If you do not move out by the agreed-upon date, you may have to pay the use and occupancy. If you come to an agreement, it will be written as a stipulation of settlement. The judge will review it with both parties to make sure you understand it and agree with its terms. This is the time to raise objections or ask questions. Once everyone agrees, you, the landlord or his lawyer, and the judge will sign the agreement. The agreement is binding once it is signed. You should ask the judge to explain the agreement to you to make sure you understand it.

If you can’t come to an agreement with the landlord, the case will go to trial. The trial will probably be on a different date and might be in front of a different judge. At trial, the judge will determine whether the landlord has proved his case and should be awarded a judgment of possession for the apartment. You should bring to court any evidence, documents, or witnesses that you need to prove your defenses. Once the judge makes a decision, the judgment will be mailed to you and the landlord. If the judge rules in the landlord’s favor, the judgment should have a date by which you must be out of the apartment.

If I lose, how long will I get to move?

If you go to trial and lose, the judge can give you up to 6 months to move out. The judge will consider factors such as why the holdover was brought against you, whether the landlord needs the apartment for family members, whether school-age children in the apartment will benefit by finishing out the school year, and the age and health of the occupants. You may have to pay use and occupancy during this time; if you do not make the payments, you can be evicted sooner.

What if I cannot move out by the date?

If you have not moved out by the date that you agreed to in a stipulation or were ordered to by the judge, you can fill out an order to show cause (OSC) and request more time. However, the court can only give you 6 months to move. You should keep a record of your efforts to find new housing and put the details of your search in your OSC. If you were evicted for creating a nuisance or involvement in criminal activity, it might be very difficult to get more time.