Legal Aid Society of Northeastern New York

What Is Rent?

Rent is money paid by a tenant to a landlord in exchange for the use of an apartment or house.

Security deposits, late fees, attorneys’ fees, trash removal costs, utility charges, and other charges payable to the landlord are not considered rent unless you have a lease that says these charges are considered rent.

When Must Rent Be Paid?

If you have a lease, it will tell you when the rent should be paid. If there is no lease, you and your landlord should have agreed when rent was to be paid. A landlord usually will want rent paid on the 1st of each month unless the two of you have worked out some other agreement. A lease will sometimes grant you a grace period (5 days, for instance) before rent is considered late. If you do not have a lease, or your lease does not grant you a grace period, your rent is late the day after the date you and your landlord agreed it would be paid.

When Can The Landlord Evict Me For Not Paying The Rent?

The landlord must first ask you in writing or in person to pay the rent after you have failed to pay. This is called a “Demand for Rent”. If the landlord gave you a written demand for rent, you must be given three full calendar days to pay the money before an eviction action can be started against you in court, unless there is a provision in your lease giving you more time. If there is a provision in your lease that states you must be given more than three days’ notice (five days, for example), you must be provided with that number of days to pay your rent before an eviction action may be started against you.

What Is An Eviction?

An eviction is a court proceeding in which a landlord asks a judge to order you out of the house. The landlord usually asks for a judgment declaring that you owe the unpaid rent as well.

How Does An Eviction Work?

There are several steps involved in an eviction:

1)   The landlord must make a “Demand for Rent”, demanding that the rent be paid within 3 days, or a longer period of time if one is specified in your lease.

2)   If the rent is not paid within the 3 days, the landlord must serve you with papers to appear in court. These are called a “Petition” and “Notice of Petition to Recover Real Property.” They must be served upon you in one of three ways: (1) by serving you personally; (2) by serving someone who lives or works in your home and then by mailing a copy by both regular and certified mail to you; or (3) by leaving a copy at your home and then mailing a copy by both regular and certified mail to you. Generally, you must receive the papers 5 to 12 days before the court date. These papers should tell you when and where to go to court, the reason why the landlord wants you to move, how much back rent you owe, and for what months you owe it.

3)   You have a right to your day in court. It will be your chance to tell the judge your side of the story, and to offer any proof or evidence you have in support of your case. This may include, for example, rent receipts, code enforcement reports, and photographs of the apartment.

In most cases, it is advisable to go to court on the “return date”. If you fail to appear on the return date, you will lose the case by default, or automatically. Be on time. Do not leave until the Judge or Clerk tells you you may go. Ask for time to get a lawyer. If you can’t get a lawyer to go to court with you, try to get legal advice before you go to court. Take all rent receipts, the lease, code reports, and Social Services papers with you when you meet with a lawyer and when you go to court. Always try to get a lawyer to represent you in court.

4)   If you do not win in court, you should receive a written “Warrant of Eviction” signed by the judge telling you when you must leave the house.

5)   The sheriff or city marshal must serve you with a “72 Hour Notice” either in person or by leaving a copy at your home. The Notice will state when you must leave.

6)   If you have not left by the time stated in the Notice, the landlord may then ask the local city marshal, sheriff (or police, in rural areas) to change the locks (or supervise that procedure) and escort you off the premises, even if your belongings are still there and you have no place to go.

How Can I Fight Being Evicted?

There are several ways for you to defend against an eviction for non-payment:

• You can show proof that the rent was paid in full by offering rent receipts;

• You can tell the judge you offered the landlord the back rent but it was refused. If you have the back rent, be sure to bring it to court with you;

• You can ask the judge for an adjournment in order to try to get the money from another source (for instance, the Department of Social Services); however the judge does not have to grant the adjournment;

• You can tell the judge that your landlord did not take the proper steps to evict you as described in steps 1 – 2 above;

• You can tell the judge that you withheld the rent because the landlord failed to repair conditions that endanger your life, health, and safety. This is difficult. It is strongly advised that you talk with a lawyer before withholding rent from the landlord. If you have already withheld the rent, or plan to withhold it, make sure:

♦    There is a housing code or health inspection report to take to court with you;

♦    That the landlord was told to fix the conditions and didn’t;

♦    You bring the rent you withheld to court with you;

♦    To take good witnesses, photographs, and any other evidence of bad conditions to court with you;

♦    If you are on public assistance, to get the Department of Social Services to write to your landlord explaining that they are withholding rent until repairs are made.

What If I Don’t Have The Money To Take To Court?

Go to your local Department of Social Services. Take your eviction papers even if it is only the 3-day “demand for rent” from the landlord. Tell Social Services that you are being evicted. Fill out an application and write “I am being evicted” on the application in large letters. Make sure you are seen that day by someone and ask for supervisors if you’re not getting help. Find out what Social Services is going to do for you on the day that you apply and get the name of every person you talk to.

Can The Landlord Evict Me Without Going To Court?

1. NO. The landlord may not:

• Forcibly remove you from the premises without going to court;
• Change the locks or remove or padlock the doors;
• Turn off your utilities;
• Threaten or harass you.

If the landlord does these things, you may be able to sue for civil damages, but first try the following: Call the police immediately. If the police tell you it’s not a criminal matter, ask to speak to a supervisor. If you still do not receive any assistance, apply at the Department of Social Services for emergency housing and contact the Legal Aid Society.

What If I’m Evicted And Have No Place To Go?

Go to your local Department of Social Services and apply for emergency assistance. Take all of your eviction related papers. Write on the application that you have no place to live and insist that you be seen that day by someone. If you do not receive any assistance, contact the Legal Aid Society.