Hi everyone, from the law offices of John Nacca and Erin Elsner
We wanted to update our clients with some new updates and anticipated changes that we believe may be coming up in Rochester City Court that are likely to effect your evictions.
DEMANDING OF RENT
One major issue that keeps coming up in court is the 3 day notice and whether or not it was properly served. When we have contested cases with Legal Aid, the 3 day notice to pay or quit (and likely the improper service of the same) is their go-to defense. A proper demand of the rent was not often an issue that came up in Rochester City Court in the past but we are seeing it more and more.
The statute requires that the rent be demanded. This can be done in 1 of 2 ways:
1) the landlord can orally demand the rent. The demand must be clear and unequivocal so for example the landlord may say “Tenant- I am demanding that you pay me rent in the amount of $1000 no later than February 10th and if you fail to do so I will bring an eviction proceeding”. That demand is sufficient. However, simply stating “where is the rent?” or “when are you paying your rent? You are 5 months behind!” is NOT sufficient. Note that with the proper oral demand the landlord is stating a) how much is owed b) when it needs to be paid by and c) that if they fail to pay an eviction will be commenced.
2) A written 3 day notice to pay or quit must be served on the tenant properly. This is where a lot of landlords find themselves in trouble because the statute is VERY specific in how the 3 day must be served. Simply mailing it or taping the demand to the door is NOT sufficient. A 3 day notice must be served the same way a petition is served and we must have an affidavit of service. If you are not familiar with how to serve the paperwork properly we highly recommend that you use a process server to do it for you. We have an in house process server if you would prefer that we handle service on your behalf.
This does not necessarily mean that you have to have a process server serve ALL of your 3 day notices- we know that for a lot of our clients, especially management companies, the time and cost of this is not realistic. HOWEVER, if you know that you need to bring a tenant to court and you know that tenant will not go without a fight, it is highly recommended that you do not take any short cuts and make sure that 3 day notice is properly served. If we get called to the carpet and have to have a hearing regarding the demand of rent and one of the 2 above options was not done properly, you will be forced to start all over which will burn your hard earned time and money.
?New Judges
We currently have 2 judges that we will be seeing- Michael Lopez and Melissa Barrett. We do not have too much information on either judge. Rumor has it that Judge Lopez is very liberal so its even more important that things such as 3 day notices are done properly so our case does not get bounced before it is even heard on the merits. This may also mean that larger abatements or reductions of rent may be granted during habitability hearings or that the court may give tenants even more time to vacate. We simply do not know.
I have only been in front of Judge Barrett once so far but when I appeared in front of her she would NOT make future rents a condition of a payment plan. So that means if we want the tenant to get caught up over a period of time she will not make the rent as it becomes due during the payment plan a condition to staying. That means the landlord is faced with 2 difficult options- forcing the tenant to pay before the end of the month (which is not often realistic) or entering a payment plan and crossing our fingers that the tenants will continue to pay rent (a very unreliable option). I anticipate most landlords wanting rent paid in full before the end of the month- an option both tenants and legal aid will not like. That brings us back to the importance of properly demanding the rent because if we say “you need to pay in full by the 31st” I can already see the writing on the wall and Legal Aid will go to their trusty defense of the 3 day in an effort to get our case tossed. I have been speaking with Legal Aid and we are hoping to speak with Judge Barrett so that she will allow on going rent to remain as a condition to a payment plan but that remains to be seen.
Section 8
The new trend we are seeing this year with the judges is that they want to know in the court paperwork if a tenant is on Section 8. We have a spot on our referral form (both the pdf and online) where we ask about whether or not a subsidy is received. If the tenant receives Section 8 PLEASE let us know so we can properly allege that as well as ensure Section 8 is sent a copy of the paperwork. Failure to do either can result in our case being dismissed, forcing us to start over.
Out of State Entities (corporations, LLCs, etc)
Out of state entities not being registered to do business in NYS came up a few years ago but it continues to be a problem. If an LLC registered in say, Florida, is not registered in NYS the court will toss our case. When we receive your referrals and see that the property is deeded in the name of an entity we always do a corporate search with NYS to ensure that it is registered. If it is not you can expect to hear from myself or Samantha to see if you want to roll the dice or get the entity registered. NOT ALL JUDGES CARE ABOUT THIS- however, just because a judge that does not typically care about this is expected to be on the bench when your case is heard that does NOT mean that judge will rule in our favor or that another judge may be filling in that day.
Month to Month Leases
This is another example of some judges caring and others not. Technically, a lease that automatically renews on a month to month basis is not enforceable under General Obligations Law Sec 5-905 UNLESS the landlord provides the tenant a written reminder of renewal prior to the expiration of the lease (meaning you are literally reminding the tenant every month that the terms and conditions of the lease are renewing for the following month). A notice like this is just not realistic for most landlords.
Currently, only 2 judges are concerned with this. However, again, we cannot guarantee that the other judges won’t follow suit. Additionally, even if a judge does not typically deny fees because it is a month to month lease, MOST judges will deny fees for leases that are quite old (think leases that expired over a year ago).
Additionally, as long as we are talking about leases and languages- PLEASE be sure that your lease states that late fees and attorney fees are considered as additional rent. Some judges are known to deny our request for fees because this language is not included. Recently, one judge denied John attorney fees because the lease referred to them as “legal fees” not “attorney fees”. (BTW we are NOT convinced on that one- this specific case just did not lend itself to a proper appeal).
Lastly, as a reminder, the court will not grant fees (late, attorney, etc) without a written lease.
MISC
A few more reminders, especially for Rochester City:
1. When you receive rent in a given month it MUST be applied to the month received and cannot be applied to past months UNLESS you provide a receipt at time of payment specifying what months the tenant paid with that payment. The court requires that we apply the rent that way absent a receipt.
2. If a tenant is on DSS or other subsidy the judge MAY refuse to issue a warrant before the end of the month. The reason being is that when say, DSS pays a portion of the rent they are technically paying a small amount for each day of the month, they are not just paying “half” of the month.
3. 30 Day notices- assuming rent is due on the 1st of each month the notice must be sent AND received before the end of the month and it must give the tenant until the last day of the following month. For example, mailing a notice on February 6th will still give the tenant until March 31st to vacate. However, mailing the notice on February 27th or February 28th will likely have to give the tenant until April 30th because if you mail it on the last day of the month it will NOT arrive before the first. Lastly, after your notice expires (here, March 31st) you CANNOT accept rent in April OR demand rent in April- that will void your 30 day!