question on an eviction

17 Replies

I am in New York State.

I have a one year written lease with the tenant which will end on Oct 31, 2015. Rent was paid on time before. Usually I sent a message or a phone call to confirm the rent collection date.

However, on Sep 1 and 3rd, I sent the ask-for-rent messages twice and no reply. I called the tenant and he said that he would call me back but no at all.

On Sep 4th, I asked my friend to deliver a "rent demand notice" (deadline set to Sep 14) and he told my friend that he is leaving by the end of September. My friend told me but I thought it was a joke, since the lease will be over at the end of October.

On Sep 14th, I went to talk to him. He said that he is leaving at the end of September, and he just use the one-month deposit as the last month rent. I told him this is not the correct way but he refused to give me any rent. I filed a petition for eviction on Sep 16.

I have the following questions:

1. I did all these on my own but still wondering if I should have an attorney.

2. What can I do in the court which will be next week (Sep 24):

a. what should I ask for?

If he shows proof (like a new lease) that he is leaving, I still need to ask for rent for September, but can I still ask for rent for October?

b. He caused lots of damage to the house. That is why I must hold his deposit. But should I evict him first, or I will be discussing repairs in the nonpayment court?

Thanks a lot for your help to the new comer!

to Be more precise: the wife said that they are leaving at the end of September. When I asked what if they don't, she said that she will pay rent for October if they are not leaving. The husband just simply said that they will stay in my house as long as they can. That is why I started the eviction process.

Start the eviction process. The longer you wait the deeper the hole you dig for yourself. If they were not forthcoming in the beginning there is no point in trusting them in the future. You should get legal counsel. It will cost you more in the long run if you don't.

They should have giving you notice that they were moving and the sec dep is not to cover the months rent.
They are responsible for paying the rent up to the lease date since you did not release them of their lease. My experience is to do whatever negotiation in court and have their response recorded ( if they are leaving by when they will give you possession etc)

Originally posted by @Donald Howaniec :

Start the eviction process. The longer you wait the deeper the hole you dig for yourself. If they were not forthcoming in the beginning there is no point in trusting them in the future. You should get legal counsel. It will cost you more in the long run if you don't.

 Thanks Donald. I will see them in the court this week.

Originally posted by @LaVone Mason :

They should have giving you notice that they were moving and the sec dep is not to cover the months rent.
They are responsible for paying the rent up to the lease date since you did not release them of their lease. My experience is to do whatever negotiation in court and have their response recorded ( if they are leaving by when they will give you possession etc)

 Thanks LaVone. 

Although in the lease we didn't mention how to terminate the lease early from the tenant's side, I think it is a common sense for them to let us know in advance if they want to leave early. Their point is that "we already told your friend who delivered the rent demand notice that we are leaving, so we don't bother to tell you again". I just cannot get their logic here. We never agreed that they can use sec dep as any month's rent.

I am still thinking how best to negotiate. I hope they can leave as early as they can, but I need to keep their security deposit to fix the damage they caused to my house.

I personally would do everything by the books and inform the tenant that you will file for eviction. If tenants see that you mean it, they might realize that an eviction on their record will reduce the chance for further tenancy therefore it is better for them to fulfill the contract. A letter head from a lawyer sometimes works wonders. 

Originally posted by @Andreas W. :

I personally would do everything by the books and inform the tenant that you will file for eviction. If tenants see that you mean it, they might realize that an eviction on their record will reduce the chance for further tenancy therefore it is better for them to fulfill the contract. A letter head from a lawyer sometimes works wonders. 

 Thanks Andreas. I did explain to them before filing eviction, but they didn't seem to care about it. To me they just ignored the lease we have and wanted to do things in their way.

Hi Roger, I don't know the landlord tenant laws in Melville NY, but in most cases, anyone residing over this case would go strictly by your lease agreement. 

It sounds like you need a stronger lease agreement that spells everything out in clear terms, so that there's no misunderstandings later. (I can email you a strong lease agreement to review if you want)

You may also want to take pictures of the damage done to the property and bring them with you to court. It would also help if you had pictures of the property prior to them moving in, so they could clearly see the damage. 

Big picture (without getting into details)...

Your tenant did not do the process correctly--that is a given. 

But this is not about whether you are right in the end. The key is what you can do and what you can collect. 

You mention "damage" ... So one key is whether the tenant could even pay for this (a wealthy professional or dead beat?). In short, you could get a judgment but it may not be a much good. 

Now the key part--do you take the lumps and focus on the next tenant or spend resources on chasing the old departing one for lost rent and damage. I think it all depends--how much damage, how much money/time you will spend chasing him, and what your legal fees are in your area. 

For example, if the damage was just cosmetic, I would keep the deposit as a offset for damage/rent and send him the required forms on this within the required time. Then I'd be glad to have him gone and focus on the next tenant...

If he really damaged the place (and you know from my application he has some financial means), then you may want to have a landlord tenant lawyer or general practitioner look at the exact next steps for the eviction or civil lawsuit. They could handle the specific questions you have about the eviction and damages.

Big picture....Just like so many landlord situations, you have to run the numbers. Personally, I find if I choose decent tenants, it often is more efficient to get them to move on and focus my resources on turning around the unit and focusing on the new tenant (positive energy) rather than chasing the old tenant for a relatively small amount of money that they may or may not have  (anger and negative energy) and paying the lawyer may eclipse the amount I'd collect...

Originally posted by @Glen Andrews :

Hi Roger, I don't know the landlord tenant laws in Melville NY, but in most cases, anyone residing over this case would go strictly by your lease agreement. 

It sounds like you need a stronger lease agreement that spells everything out in clear terms, so that there's no misunderstandings later. (I can email you a strong lease agreement to review if you want)

You may also want to take pictures of the damage done to the property and bring them with you to court. It would also help if you had pictures of the property prior to them moving in, so they could clearly see the damage. 

 Thanks, Glen. 

The lease doesn't say how a tenant should terminate the lease early, but I think it should be kind of common sense to at least formally discuss with the landlord. It would be great if you can send me a better lease for my future use (thanks).

How to prove that the damage is the tenant's fault? One major one is that on a very cold winter day they set the thermometer to be lower than 40F (they didn't stay inside the house) and the pipe to the dishwasher (in the kitchen on the first floor) got broken. They called me around 9:30pm and said that there was flooding in the house. I went there and noticed their setting on the thermometer. The water went down to the basement from the kitchen ground and the ceiling of the basement was completely ruined (I finished the basement not long ago). Later the water valve to the dishwater was shut off and the flooding was stopped. 

On the same time, they also told me that there was no water supply to the toilet on the first floor. (But later once I asked them to set the thermometer higher the water came back again, so it is just because the pipe was frozen).

However, I don't know if it is hard to prove that it is the tenant's fault. They will definitely argue.

Roger, let me know your email and I'll send you a good lease agreement. 

Originally posted by @Michael Boyer :

Big picture (without getting into details)...

Your tenant did not do the process correctly--that is a given. 

But this is not about whether you are right in the end. The key is what you can do and what you can collect. 

You mention "damage" ... So one key is whether the tenant could even pay for this (a wealthy professional or dead beat?). In short, you could get a judgment but it may not be a much good. 

Now the key part--do you take the lumps and focus on the next tenant or spend resources on chasing the old departing one for lost rent and damage. I think it all depends--how much damage, how much money/time you will spend chasing him, and what your legal fees are in your area. 

For example, if the damage was just cosmetic, I would keep the deposit as a offset for damage/rent and send him the required forms on this within the required time. Then I'd be glad to have him gone and focus on the next tenant...

If he really damaged the place (and you know from my application he has some financial means), then you may want to have a landlord tenant lawyer or general practitioner look at the exact next steps for the eviction or civil lawsuit. They could handle the specific questions you have about the eviction and damages.

Big picture....Just like so many landlord situations, you have to run the numbers. Personally, I find if I choose decent tenants, it often is more efficient to get them to move on and focus my resources on turning around the unit and focusing on the new tenant (positive energy) rather than chasing the old tenant for a relatively small amount of money that they may or may not have  (anger and negative energy) and paying the lawyer may eclipse the amount I'd collect...

 Thanks, Michael. 

They are not short of money. They run a restaurant and claimed to me that their yearly income is half million (including the couple they have 4 employees in total, all live in my house). It might end up that they can easily get an attorney while I still need to represent myself in order to save money on it. I must admit that sometimes I think maybe it is better to compromise, to let them go in the way they want, which might be good with the "big picture" as you suggested. But by the end I filed the eviction petition and at least I want to let them know there is still something called law that they need to follow.

Good to know, Roger. Many of these situations depend so much on the facts and circumstances... 

Two areas where I have additional concerns include when a tenant may have more resources than a landlord.... 

Often, these are tenants who can use free legal services and  clinics (meaning they are being represented or advised for free based on their income while the landlord has to pay). 

Or, more rare for me, is when a tenant has more economic resources than I do... This may be the case with a mid six figure tenant (it would be for me)...

Both can be no win situations for landlords.... You may prevail but still be in worse shape than had you worked out an orderly exit... (especially with judgment you cannot collect or high legal fees)....

These are situations that would prompt me to move on rather than get embroiled in a legal battle. But good to cover your bases just in case, and your petition communicates the seriousness. Ideally, you won't get any counterclaims in the answer from the best landlord tenant firm in the area.... 

And I am the same with tenant's getting out past a week or two, I do the proper notices to quit. Also, perhaps you can still talk with them about their move out plans while it is cheap (gets expensive talking through lawyers)... You might also get a lawyer if you find they are represented, highly recommended with lots of technical details on eviction in every state.

Did you think to take a picture of the thermostat set to 40 degrees?  Did the pipe burst and did you get a pic?  I would take them to court and get a judgement for the rent owed and damages.  Get an attorney involved now so everything is done right.  If they are making a half a million a year did you get proof of that?  W-2?  Tax returns?  I bet the restaurant brought in (gross) a half a million and didn't net that.  If they go to sell the biz you might get your dollars then if your attorney attaches a lien to it.

Originally posted by @Glen Andrews :

Roger, let me know your email and I'll send you a good lease agreement. 

 Glen, got it. Thanks a lot.

Originally posted by @Jim Shepard :

Did you think to take a picture of the thermostat set to 40 degrees?  Did the pipe burst and did you get a pic?  I would take them to court and get a judgement for the rent owed and damages.  Get an attorney involved now so everything is done right.  If they are making a half a million a year did you get proof of that?  W-2?  Tax returns?  I bet the restaurant brought in (gross) a half a million and didn't net that.  If they go to sell the biz you might get your dollars then if your attorney attaches a lien to it.

 Thanks, Jim. I don't have all  these pictures. That is why I felt difficult to prove now. The half million revenue is the gross one, based on what they told me. They also informed me before that of course they put a much smaller number on their tax return so there is no use for me to check it. They rent the restaurant place, but they are the business owner. I hope this lien thing could work.

Originally posted by @Michael Boyer :

Good to know, Roger. Many of these situations depend so much on the facts and circumstances... 

Two areas where I have additional concerns include when a tenant may have more resources than a landlord.... 

Often, these are tenants who can use free legal services and  clinics (meaning they are being represented or advised for free based on their income while the landlord has to pay). 

Or, more rare for me, is when a tenant has more economic resources than I do... This may be the case with a mid six figure tenant (it would be for me)...

Both can be no win situations for landlords.... You may prevail but still be in worse shape than had you worked out an orderly exit... (especially with judgment you cannot collect or high legal fees)....

These are situations that would prompt me to move on rather than get embroiled in a legal battle. But good to cover your bases just in case, and your petition communicates the seriousness. Ideally, you won't get any counterclaims in the answer from the best landlord tenant firm in the area.... 

And I am the same with tenant's getting out past a week or two, I do the proper notices to quit. Also, perhaps you can still talk with them about their move out plans while it is cheap (gets expensive talking through lawyers)... You might also get a lawyer if you find they are represented, highly recommended with lots of technical details on eviction in every state.

Thanks. As a landlord I felt I had made too many compromises. This time I just want to go ahead to see them in the court...

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