RETALIATORY EVICTION
In New York, tenants are protected from retaliatory eviction proceedings by RPAPL 223-b. This statute states in summary that a landlord cannot commence a summary proceeding to evict a tenant in retaliation or response to a tenant exercising it’s rights to file a complaint against the landlord with a government authority. The statute also goes a bit further and protects a landlord from retaliating against the tenant in other ways than starting a retaliatory eviction proceeding. Most notably, the statute prohibits a landlord from changing terms of the lease agreement in response to a complaint.
Another major component of this statute is the presumption that it creates. If the landlord has knowledge of the complaint filed by the tenant prior to initiating the summary proceeding, the landlord is presumed to be commencing a retaliatory eviction proceeding. The presumption however is only applicable after the tenant disproves certain underlying allegations of the petition; such as nonpayment of rent.
Retaliatory evictions are often commenced in response to the filing of a complaint due to the landlords failure to provide necessary services such as heat or hot water. It is important to understand whether or not a summary proceeding is warranted under the circumstances or whether the commencement of an action will be considered by the court to be a retaliatory eviction.
Landlord Tenant Attorney
Knowing the law regarding retaliatory eviction proceedings is necessary for every landlord and tenant. Please call the Law Firm of Vaughn, Weber & Prakope, PLLC at 516-858-2620, where a landlord tenant attorney can speak with you about your case.
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Wrongful Evictions in New York
A wrongful eviction action is defined by Black’s Law Dictionary as “a lawsuit brought by a former tenant or possessor of real property against one who has put the plaintiff out of possession, alleging that the eviction was illegal.”
A wrongful eviction action can result in the plaintiff/former occupant being restored into possession of the subject premises. It is worth noting that when the subject premises has been re-let, the court will balance the equities between the plaintiff/former occupant vs. the rights of the new resident of the subject premises. Wrongful evictions can be litigated in every county in New York State.
Another possible outcome of a wrongful eviction action is that the plaintiff/former occupant can be awarded punitive damages. Often times, wrongful evictions result in economic loss such as hotel costs for the former occupant, or the loss of personal belongings that were discarded by the defendant. In New York, treble damages may be awarded in wrongful eviction actions.
For the eviction to have been a wrongful eviction or illegal, the underlying basis or the case procedure must have an identifiable defect. Often times, Rent Stabilization Procedures are not properly followed or tenant payments are not properly credited to the tenants account. Self-Help adds a layer of complication but almost always fits into the category of wrongful eviction, especially in residential units. Self-Help language in leases will be reviewed by courts when a self-help eviction issue is raised in the court.
Understanding the landlord tenant dynamic and how wrongful evictions play a roll in that dynamic can present a dilemma if you do not seek the advice of an attorney. These complex issues are often not presented properly and the cases are often dismissed.
Eviction Attorney in New York
If you have been wrongfully evicted, please call the Law Firm of Vaughn, Weber & Prakope, PLLC at 516-858-2620 to speak to an attorney today!
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Standing in Landlord Tenant Court
Standing is an affirmative defense that finds its way into many Answers in Landlord Tenant Court. Standing refers to the right of the petitioner/landlord to bring the case in the first place. The quick rule of thumb to decipher whether or not a petitioner has Standing is if the petitioner appears on the deed to the property on the date that the action was commenced. An action is commenced on the date that the index number is purchased with the Court.
In cases where Standing is at issue, it is necessary to determine whether or not a Power of Attorney has given the authority to prosecute a case to another individual than whom appears on the deed. It is important to note that the petitioner should in most cases still be the person named as owner on the property deed.
If you are involved in a current landlord tenant proceeding or are considering bringing a landlord tenant action, call (516) 858-2620 to speak to a landlord tenant attorney today!
Does landlord have a duty to mitigate damages if tenant breaches lease?
If you are a landlord in New York, you may – or may not – be responsible for mitigating damages that result from a breach of the lease.
Generally, a non-breaching party to a contract has a duty to mitigate damages resulting from another party’s breach of contract. For example, imagine that a construction company enters into a contract to buy building materials from a manufacturer. If the manufacturer breaches the contract by failing to provide the building materials, the construction company will not be able to complete the building, and may not be paid for the project. Under traditional contract rules, the construction company has a duty to attempt to acquire the materials from another manufacturer. The construction company may not sue the manufacturer for all of the money it lost as a consequence of failing to complete the project unless it at least made an effort to replace the materials, by, for example, buying the materials from another manufacturer. Even if successful in replacing the materials, the construction company may sue the manufacturer for any additional costs it took on in search of those replacement materials.
Landlord tenant law sometimes imposes a similar duty upon a landlord in the event that a tenant breaches a lease by, for instance, moving out before the end of the lease term. Many jurisdictions would require a landlord in this position to at least attempt to rent the property to another tenant. If successful, the landlord will have avoided some of the financial losses that would have occurred had the property remained vacant until the end of the lease term. However, in other jurisdictions, no such duty is imposed upon landlords. In those cases, if a tenant breaches a lease by moving out, a landlord may wait until the end of the lease term, and then sue the tenant for the entire amount of rent still outstanding under the lease, without making any attempt to find a replacement tenant.
What kind of jurisdiction is New York? Surprisingly, it is both. Although most courts agree that commercial landlords have no duty to mitigate their damages (that is, they have no duty to find replacement tenants), there is much disagreement – and confusion – between the courts about whether residential landlords have such a duty. For the foreseeable future – that is, until a higher court takes an unambiguous position on this issue – case law in the different counties determines whether the duty applies to any given landlord.
If you are a landlord or tenant, and have any questions about how the law applies to your property or lease, please feel free to call (516) 858-2620 to speak with a Landlord Tenant Attorney.
*Contributions to the research and preparation for this blog were made by Jason Mays, J.D.(awaiting admission in NYS)
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