Lawline.com Faculty Member
I would like to thank Lawline.com for the opportunity to teach a couple of courses focusing on Landlord Tenant and Foreclosure Defense. Anybody who wants to view the courses can click the link below:
Eviction of a tenant for criminal drug activity
A very interesting decision came down on April 11, 2014 regarding the eviction of a tenant for criminal drug activity. The Appellate Term ruled that in order to evict a tenant for criminal drug activity, the tenant’s possession of illegal drugs is not enough. The landlord must also be able to prove the tenant’s intent was to use the drugs in a criminal manner. The crime of possession is not insufficient for this purpose, Los Tres Unidos Associates, LP v. Angel Mercado, “John Doe” and/or “Jane Doe” 2014 WL 1408540.
This is important for landlords to understand. A distinction must be made between the landlord’s knowledge of a tenant’s possession drugs and a tenant selling drugs or using drugs in a manner that is considered a criminal drug activity. This may save a landlord the time and money for bringing a Holdover Proceeding that cannot succeed. If you insist on moving forward with such a Holdover Proceeding, be ready to prove the tenant’s intent to engage in criminal activity with regards to the drugs.
As always, if you have questions about evicting a tenant, call (516) 858-2620 to speak to a landlord tenant attorney that can assist you!
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)
Holdover vs. Nonpayment Evictions
Deciding between holdover and nonpayment evictions.
Recently, we have had several situations arise where clients had to determine whether they would bring a Holdover vs. Nonpayment eviction against the tenant. Now it is true that in most situations, there is really no choice. The facts of the specific case dictate that there is only one option available. It is not correct however to assume that there are never situations where a choice exists. The final decision needs to be the result of strategic planning between attorney and client.
The one constant that must be taken into account when determining which type of action you will ultimately bring is the desired outcome. The attorney’s job is to take the specific facts of the case and develop the plan to achieve the desired outcome. Together, the attorney client team decides on the type of action to bring. Together, they have taken into consideration the ultimate goals of the landlord, the governing laws, the trends of the court rulings, and the facts of the case.
As always, if you are having trouble deciding which type of action to bring, call the Law Firm of Vaughn, Weber & Prakope, PLLC at (516) 858-2620!
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