A Simple Guide To Eviction and Repossession Laws in New York
Under the New York State eviction laws, a property owner can evict a tenant for several reasons. However, before the eviction can occur, the landlord must terminate the tenancy by providing the tenant with adequate written notice. If the tenant does not comply with the notice, the property owner can file an eviction case in court to remove the tenant from the property.
The NY eviction laws require that the process for evicting a tenant should follow specific rules and procedures, depending on the circumstances. For example, is the property rented for residential or commercial reasons? Is it located in New York City or outside? Is the unit rent-regulated or not? The law’s intention is to ensure that eviction is justified and that the tenant has enough time to find a new place to live.
The NY State eviction process typically requires the property owner to provide the tenant with adequate notice. The duration of the notice depends on the case and is strictly defined by NY eviction laws. Only after the end of the notice period, and if the tenant has failed to comply with the notice requests, can the property owner file a case with the courts and receive an eviction court order. The landlord can then have a law enforcement officer evict the tenant.
Self-help eviction is illegal in the state of New York. Indeed, it is a class A misdemeanor if a property owner evicts a tenant by tactics such as changing locks, padlocking doors, removing the door of the property, taking out furniture or other property of the tenant, turning off electricity or water, and generally using any form of threat, force, or violence against the tenant. In case of illegal eviction, the tenant can call the police.
Landlords must carefully follow the legal rules and procedures under the New York eviction law, otherwise the eviction may not be valid.
Commercial Eviction in New York
A commercial tenant rents a property specifically for the purposes of doing business and/or conducting other commercial activities. In general, commercial tenants have limited rights compared to residential tenants, even if the NY commercial eviction law offers more protection than other states.
A landlord must offer the court a specific, justifiable reason to remove a commercial tenant. Failure to pay rent constitutes one of the major—but not the only—justifiable reasons for commercial eviction. A property owner can also claim that the tenant violates other terms of the lease contract, creates a public nuisance, holds the property long after the expiration of the lease contract, etc.
Under the New York state eviction process, commercial tenants are protected against discrimination, harassment, recurring frivolous legal actions, or repeated unnecessary acts that interfere with the tenant’s business. Therefore, the property owner cannot start an eviction process based on any reason that goes against the above protections. Furthermore, NY eviction laws assume that if a tenant’s right or obligation is not explicitly mentioned in the commercial contract, then it is not enforceable.
The New York State eviction process requires the property owner to provide the tenant with a three-day eviction notice to remedy the causes of the eviction, before filing a case in court.
If a commercial tenant faces eviction, they should consider the following possible defenses:
Illegal eviction. As an example, if the landlord’s justification for eviction can be proven to fall under any of the protections offered by the NY evictions law, such as discrimination (under the Fair Housing Act) or interference with services that are deemed to be of “proper and customary” use of the building.
Lack of proper notice. Specifically, if the landlord fails to notify the commercial tenant with a three-day notice that would allow the tenant to remedy the issue that causes the eviction.
Breach of contract. That’s when the reason for the eviction violates a condition of the commercial lease agreement.
Retaliatory eviction. This is when the tenant can prove that the attempt to evict is in response to the tenant’s actions to protect their own rights. For example, the tenant may have been rightfully complaining about issues that affect the property such as demanding maintenance, and the landlord sues to evict the tenant in retaliation.
In case of a commercial tenant eviction violation, the tenant can claim remedies such as monetary damages, an extension of the time they have to fix violations, the right to remain on the property, etc.
Types of Evictions and Eviction Notice Times
The New York State eviction process imposes strict notice requirements on the landlord. A landlord cannot proceed with eviction before the expiration of the rental term unless there is a specific reason to terminate a lease or to discontinue a lease with no specific expiration time. Such reasons can be that the tenant has stopped paying the rent or violates the lease/rental agreement. Depending on the reason, the landlord needs to start the eviction process by giving the tenant the proper notice:
14 Day Eviction Notice to Pay Rent or Quit: If the tenant has fallen behind in his rent payments, the landlord can give him a fourteen-day notice to pay the rent in full or move out of the property. If the tenant neither pays the rent nor moves out at the end of the 14 day eviction period, the property owner may lawfully file an eviction lawsuit with the court. Of course, the tenant may fight this by filing for Chapter 7 bankruptcy.
30 Day Eviction Notice to Cure and Notice of Termination: If the tenant is in violation of the rental agreement, then the landlord needs to provide two different types of notices to start the eviction process.
Notice to Cure: To start a possible eviction process, the property owner first needs to give the tenant who has violated the lease a Notice to Cure, allowing them 10 days to correct the lease violation. If the tenant complies, the landlord cannot proceed with an eviction. However, if the tenant persists in violating the contract, the landlord can take the next step and proceed with a notice of termination.
Notice of Termination: Following the Notice to Cure that went without effect, the landlord should provide the tenant with a notice of termination. The notice of termination informs the tenant that the tenancy has been terminated because of their failure to correct the lease violation. The tenant has 30 days to move out of the rental unit. If the tenant does not move out of the rental unit at the end of the 30-day eviction period, the property owner can file an eviction case with the court.
Month-to-Month Rental Agreements
In case of a month-to-month lease or rental agreement, the landlord must give eviction notices as follows:
Tenants occupying the premises for up to one year: 30-day notice.
Tenants occupying the premises for from one to two years: 60-day notice.
Tenants occupying the premises for more than two years: 90-day notice.
Eviction after Foreclosure
Eviction after foreclosure constitutes a complicated aspect of the mortgage foreclosure process for all parties, involving the debtor-property owner, the tenants, the foreclosing party (usually a bank or its servicer), and the new owner of a property.
The foreclosing party bears the obligation of keeping all tenants of the property regularly informed on the process. Initially, the creditor must notify all tenants that the property is the subject of a foreclosure action. This notice is a prerequisite in case of any post-foreclosure eviction action. After the foreclosure action, the foreclosing party must again notify tenants of the outcome of the action.
After the foreclosure sale and the title transfer, the new owner must notify the tenants of their rights and send 90-day notices for any eviction planned. Not all tenants can be evicted by the new owner. In particular:
Tenants in Rent-Controlled and Rent Stabilized Units: These maintain their rights and obligations independently of the foreclosure process, including their right to renew the lease. The only change affecting them is the party to whom they pay rent. The new owner must continue to comply with all laws and regulations that apply to units subject to rent control and rent stabilization. However, the new owner can evict the tenant of a single unit in order to occupy the unit as their primary residence. In that case, the new owner must provide notice to vacate at least 90 days prior to the effective date of eviction.
Tenants in Section 8 Housing: Tenants in Section 8 housing can only be evicted “for serious or repeated violations of the terms and conditions of the lease, for violation of applicable Federal, State, or local law, or for other good cause.” Change of ownership due to foreclosure is not in itself a good cause for eviction, therefore Section 8 tenants may not be evicted after foreclosure. The only exception is for the tenants of a single unit, under the condition that the new owner intends to use it as their primary residence.
Tenants in Non-Regulated Units: Tenants in units that are not subject to rent control or rent stabilization may retain occupancy either until the end of the original lease agreement or for 90 days in the absence of a written lease term—whichever is greater. After either period, if the tenant has not moved, known as “holding over,”, the new owner can start the eviction process with a “holdover proceeding” in Court. While the case can be dismissed if the plaintiff-landlord has not brought all necessary documentation to the court, it can be restarted later. Court records about evictions after foreclosure must be sealed and kept from the public.
New York State Auto Repossession Laws
One of the most common ways for acquiring a car or boat is getting a loan for that specific purpose. In New York, a lienholder does not receive the title certificate or a copy of it. Instead, DMV issues a title certificate to the vehicle owner, not to the lienholder or any other party. If the car buyer fails to pay the loan installments, the creditor has the legal right to initiate a repossession process.
The contract may include further conditions that can lead to default and repossession if violated, such as insufficient car insurance, substantial car damage, selling the car without creditor permission, etc.
According to the New York State auto repossession laws, the creditor can lawfully repossess the car even if a debtor is only a few weeks behind in their payments, without a court order or even a simple notice (this is known as a self-help repossession). The intention of the law is to prevent the car buyer from making the vehicle unavailable to repossession by hiding it, or by diminishing its value by damaging it on purpose.
After repossession, the car buyer may contact the creditor in order to reinstate the loan contract. The car loan may be reinstated if the car buyer pays all past due payments and vehicle repossession costs and makes regular installment payments from then on, or if he pays the entire loan balance in case of an acceleration clause. An acceleration clause merely “accelerates” the debt, meaning that the lender can, after the borrower misses payments, “call the loan,” or demand that the full amount of the loan be paid immediately.
In case of auto repossession and failure to reinstate the contract, the debtor has certain legal rights:
The right to receive a notice within 72 hours after the repossession. The lender must explain in the notice how the buyer can redeem the car. If the loan contract includes an acceleration clause, the debtor can demand payment of the complete loan balance instead of just the missed installments, as well as reasonable repossession fees and expenses.
The right to receive a notice before the car is sold or auctioned. The car buyer has the right to know when and where the auction takes place. The debtor has the right to bid on the car and try to buy it back at the auction. However, if they buy it for an amount lower than the loan balance, they are still responsible for paying the deficiency balance.
The right to receive a statement after the vehicle is sold or auctioned. The lender will deduct all repossession and auction legal fees and expenses from the sale proceedings, then deduct the rest from the car buyer’s loan balance. If the sale proceedings are not sufficient to cover the loan obligation, the lender can proceed with further legal actions for the balance, known as the “deficiency.” If the sale proceedings are higher than the loan balance, the buyer may be entitled to a refund of the surplus money.
Legal Defenses in Case of Auto Repossession
There are several legal defenses a car buyer can resort to in case of auto repossession:
The lender breached the peace when repossessing the car. The New York auto repossession law specifies that when the creditor attempts self-help repossession, they must be careful not to commit a breach of the peace. The creditor may not use threats or force, they may not enter the buyer’s home or garage to remove the car without consent, and they must stop the repossession if the debtor is present and objects to it. In such a case, the creditor must physically stop the repossession and call the police. If any of the above conditions are breached by the lender, the debtor can claim a breach of peace.
The lender did not sell the car in a commercially reasonable manner. The lender is obligated by law to seek a commercially reasonable price for the repossessed vehicle. A commercially reasonable sale means that the debtor must make reasonable efforts to sell the car and may not accept a price far below the market value of the car.
The lender did not demand strict compliance to the acceleration clause in previous instances. If there is an acceleration clause and the lender has accepted late payments in the past without reacting, the buyer can claim that the acceleration clause has been waived and the debtor has no right to demand full payment of the loan.
The debtor has no right to keep a car in satisfaction of a debt if the buyer has already paid more than 60% of the car’s price. Instead, the lender must send the vehicle to auction within 90 days, apply the proceedings towards the deficiency, and give the rest of the sale proceeds to the debtor. The lender is not allowed to simply hold the vehicle.
Whether you are a tenant facing eviction, a car owner facing repossession, or a landlord who wishes to evict a tenant acting in bad faith, contact Roemerman Law to explore your options.
Experienced New York Bankruptcy Attorneys
When life happens and you’re looking for a top bankruptcy attorney in New York, Roemerman Law is here to help you recover from financial misfortunes. We can protect your home from foreclosure and stand up for you in court during a civil lawsuit brought against you by your lender.
If things do not go as planned, you have the security that Roemerman Law will provide sound legal advice to straighten out your financial position. We have the tools, knowledge, and expertise to challenge banks and other lenders in court.
Likewise, if you are facing foreclosure or if bills, credit card debt, and other payments are stressing your finances, we are here to reassess your options, advise you on loan modifications, and find the solution that best fits your financial standing and income.
Whether it’s a Chapter 7, Chapter 11, or Chapter 13 bankruptcy filing, we will be your bankruptcy lawyer, guiding you throughout the process and giving you the best legal advice for your interests.
Do I Need a Personal Bankruptcy Attorney?
As bankruptcy lawyers and attorneys, we have often stood in court, looking around us and seeing homeowners losing their homes or their other property because of poor, or no, legal representation. We have felt for them. Homeowners are real people who deserve real solutions for their problems.
While banks and financial institutions have big legal teams fighting for their interests, homeowners and financially stressed individuals often try to solve their problems on their own. However, they don’t know the bankruptcy filing system, their options, and the consequences of each decision.
That’s why people need a bankruptcy lawyer who will explain all their available choices. For example, most of our clients are surprised to learn that foreclosure is a measure of last resort and is definitely not the only solution available.
We will discuss our clients’ financial situation and sources of income and come up with a detailed plan to save their homes or decrease their personal or credit card and medical debt.
With a bankruptcy law firm like Roemerman Law by your side, you know your interests are well protected. You can stand up to your lender and find a financial result that protects you and your family.
NYC Bankruptcy and David Roemerman
We have the expertise, tools, and legal experience to fight on your behalf.
David Roemerman used to be a Wall Street attorney. He founded Roemerman Law to represent small businesses but then discovered how underrepresented homeowners are in their fight against financial institutions during foreclosure procedures. David Roemerman is part of these people: they are real to him, with real-life problems. These financially stressed people deserve a fresh start rather than a push down.
By representing these people, Roemerman Law is leveling the field to help homeowners defend their rights and protect their lives.
As a law firm, we have often asked ourselves what our clients need. We have discovered that, aside from proper and sound legal advice, they need peace of mind. They need to know that their case is in good hands and they don’t have to stress over every phone call or mail coming through the post.
Our clients also want to understand what is going on with their case and what solution will best protect their assets and income. That’s why we always explain the whole process and their options in layman’s terms.
We don’t want to impress our clients; we want to help them feel secure. Our clients don’t know the process for filing for bankruptcy in New York City. They want to know what is happening, how to declare bankruptcy in NY, what the bankruptcy process entails, and what their options are. We don’t simply explain how to declare bankruptcy in NY; we give back our clients their dignity and self-respect. This is the most precious and valuable gift any law firm can offer.
Do I Qualify for Bankruptcy?
Did you know that Abraham Lincoln, Ulysses S. Grant, Walt Disney, and Mike Tyson have all utilized bankruptcy to help them right their financial ships?
Bankruptcy is nothing to feel ashamed of. Unexpected things happen. Life happens. When we take out a mortgage, we don’t anticipate a long stretch of unemployment, a costly divorce, a death in the family, or a sickness that increases medical bills. These unexpected setbacks can leave you underwater and financially off balance for decades and cause you to miss mortgage, bill, and credit card payments.
People deserve a fresh start. We believe they should be given the opportunity to rearrange their finances and restart their lives. No one wants people living in their cars or selling off their belongings. Our society is better and stronger when people feel secure and can take care of themselves.
Roemerman Law makes sure homeowners and people are given the right to a fresh start. If your interests are not properly represented in a judicial hearing, how can you restart your life?
If you have lost your home or your creditworthiness has been damaged, how can you find a job and care for your loved ones?
By getting proper and reliable legal advice, you can take the necessary steps to rebuild your life. If you are lost in a sea of paperwork and forms you don’t understand, how can you sign them and navigate the complex bankruptcy court? Don’t give away parts of your life without a fight!
How Much Does It Cost to File for Bankruptcy?
The American legal system has developed a range of tools to help people overcome unexpected calamities.
This has resulted in several kinds of bankruptcy, each with its own benefits and challenges. For example, most people are familiar with foreclosure. However, this is a measure of last resort, as you could file for Chapter 7 or Chapter 13 bankruptcy instead.
There are many ways to recoup your financial health. You don’t need to lose your home and belongings and you certainly don’t need to lose your dignity and self-respect. With Roemerman Law, you will have the proper legal advice and all options presented to you to choose the one that best suits your needs.
Before you can decide which kind of bankruptcy is right for you, you should understand what your options are.
When you buy your home from a financial institution, you promise to pay your lender a certain sum each month until you repay them the money they lent you to buy your home, with interest. In exchange, you give them a mortgage, the right to seize and sell your house, or “foreclose,” if you fail to fully repay the loan.
If you miss your mortgage payments, the bank will start the foreclosure process. During foreclosure, you will be asked to pay your missed payments. Otherwise, your home will eventually be sold at auction, usually at a below-market price, leaving you with a deficiency judgment, meaning you owe the difference between the amount still owed on the loan and the below-market sale price.
In the state of New York, where we practice, the foreclosure process can only be done through the courts: the process is supervised by a court that issues a final judgment authorizing the sale of your home and approving any deficiency, an amount you will still owe even after losing the home. The court can also approve the foreclosure and set the day for the auction of your home.
Roemerman Law knows how the legal system works and how to protect your interests. We know that banks and financial lenders don’t like to foreclose on homes because it’s costly to them and time-consuming. They want homeowners to keep their homes and pay their mortgages.
With your bankruptcy lawyer by your side, you can establish what your other options are, besides foreclosure. These can be to modify the terms of the loan, for example by extending it. We can go to court and have the case dismissed on legal grounds. Or we can slow down the foreclosure process to give you time to re-evaluate your options and find suitable alternatives.
The only thing we ask of you is not to ignore any paperwork, letter, or email sent to you from your mortgage lender. The more time we have to devise our legal strategy, the better your chances of finding a solution that does not lead to foreclosure or the loss of your home.
Chapter 7 bankruptcy is used by individuals and companies to “wipe the slate clean” and start fresh. Any assets that are not “exempt” under the Bankruptcy Code are seized and sold, or “liquidated.” The proceeds are then distributed to the creditors. At this point, an individual usually has most of their debts discharged and starts fresh, while a company is unwound and closed.
A company filing for Chapter 7 often has assets liquidated. However, this is the exception rather than the rule, in personal Chapter 7 bankruptcies, meaning that most individual debtors keep all of their property.
Chapter 13 gives you the option to re-organize your finances by restructuring your debt. If you have fallen behind on some payments, you can ask to pay the arrears in installments in the next 3 to 5 years. The court will take into consideration your disposable income, creditworthiness, and other issues to establish a realistic repayment plan.
With Chapter 13, you get to keep your belongings and home as long as you make your monthly payments.
If you have fallen behind on your mortgage payments, you can file for Chapter 13 before your home is foreclosed. If your disposable income can safely cover your current monthly mortgage payments as well as your arrears, filing for Chapter 13 can save your home.
The Benefits of Bankruptcy
Although going bankrupt is not pleasant, choosing this option could have several benefits for you.
For example, losing your home could make financial sense if the value of your home is lower than what you owe your bank. By going bankrupt, you don’t have to pay more for something that is worth less.
A bankruptcy can also be an opportunity for a new beginning. As bills and unpaid expenses pile up, Chapter 7 or Chapter 13 can help you re-organize your finances and make a fresh start.
Carrying a heavy financial burden for years can be debilitating and drag down your family and business. You could lose your car, your home, and your sanity by trying to make payments that simply cannot be made with your disposable income.
In most cases, Chapter 7 bankruptcy can help you protect your home. You may have to sell other assets and belongings, but your home is the last to be touched. Most courts will exempt your family home and your bankruptcy lawyer will guide you through the proceedings to make sure your most precious real estate asset is safe.
With Chapter 13, you can protect both your belongings and your property: basically, you save all your personal assets.
Filing for bankruptcy is sometimes the only way to ensure a new beginning. Your creditworthiness takes a temporary hit but, in the long term, bankruptcy can be the only rational—and responsible—thing to do.
With the help of an experienced bankruptcy attorney, you will be able to navigate the legal framework and get as much as possible from what the legal system provides for you.
Instead of giving in to your bank or your financial institution, have someone who will stand up for you and make sure your interests are protected.