Holdover evictions are housing court cases where the landlord is suing for the right to evict you whether you pay the rent or not. Your landlord may demand rent as part of the case, but the outcome your landlord is seeking is to take posession of the apartment from you.
In addition to landlords, primary tenants may also start holdover evictions in to evict people living in their apartment who are not named on the lease, including family members, roommates, guests, and subtenants.
As with any eviction, you have a right to assert a number of defenses in court.
Because of the complexity of holdover cases and the consequences of losing, you are strongly encouraged to seek legal counsel before appearing in court for a holdover eviction.
The information contained on this web page does not constitute legal advice and must not be used as a substitute for the advice of a lawyer qualified to give advice on legal issues pertaining to housing. For more, visit our page on Finding a lawyer.
This information pertains only to tenants living in New York City.
Many of your rights depend on the type of housing you live in or your type of tenancy. You may be subject to different laws and have different sets of rights than even neighbors in your own building. Learn which rights and responsibilities apply to you.
Does my landlord need to have a reason to start a holdover eviction case against me?
Landlords must first give notice asking a tenant to leave the apartment before initiating most kinds of holdover eviction cases. The type of notice, and reason for eviction, depends on the type of tenancy.
Your landlord does not need to have a reason to ask you to leave, and to start a holdover eviction case if you remain, if:
- you live in an unregulated (market-rate) apartment and do not have a current lease (if your lease just expired, the landlord can start a holdover without giving you any notice)
- you are a subtenant, guest, or roommate or family member not named on the lease, and you do not have a current contract with the primary tenant
Your landlord must demonstrate a good cause to ask you to leave the apartment, and if you don't, to start a holdover eviction case if:
- you live in a rent-stabilized, rent-controlled, or government subsidized apartment (regardless of whether your lease is current)
- you are a market-rate (unregulated) tenant and you are covered by a current lease
Rent-regulated tenants (rent-stabilized and rent-controlled) can only be evicted based on reasons outlined in the laws governing rent-regulation.
What are the types of holdover evictions that can be brought against rent-stabilized or rent-controlled tenants?
There are different kinds of holdover cases. The most common include:
Claims that you have breached (violated) your lease because
- you do not live in the apartment as your primary residence
- you are subletting the apartment without permission
- your landlord disputes your right to succeed [take over] the rights to the apartment from someone else who moved or died
- you have a pet when the lease prohibits it
- you are operating a business out of your apartment
- you have an unauthorized appliance, such as a washing machine
Claims that you or someone else who lives with you is a nuisance because
- your apartment is cluttered
- there is too much noise coming from your apartment
- you, someone who lives with you, or your guests, have harassed, threatened, or had an altercation with neighbors, building staff, the management, or the landlord
- you, or someone who lives with you, or your guests, have conducted illegal activity, or allowed illegal activity to go on in the apartment
- you have a history of paying your rent late (even if you are current with your rent when the case begins)
How do I respond when I get papers notifying me that my landlord has filed a holdover eviction case against me?
Unlike a nonpayment petition, which requires the tenant to go to court and get "return" court date, the holdover petition will notify you of the date you are required to go to court. As in the case of nonpayments, it is pretty routine to get at least one adjournment to prepare your defense. Additional adjournments are less automatic. You can prepare a written answer presenting your side of the story, and raising any counterclaims you feel are appropriate.
What are common defenses in a holdover cases, besides simply denying the landlord's claim?
Under a state law, if you have recently complained to a government agency about conditions in the building, or have formed a tenants association, the court may rule against the landlord's holdover petition if convinced that the landlord la acting in retaliation for your exercise of lawful rights.
Waiver or Ratification
If the landlord has known about the condition in the holdover petition for a period of time and has accepted your rent anyway you can argue that they have given up the right to act on that claim, by "waiving" objection to it and "ratifying" your conduct.
What will happen when I go to court for my holdover eviction case?
As in nonpayments, the landlord or the landlord's attorney might approach you before the hearing and ask if you are willing to settle the case. If you are an unregulated tenant without a lease, the landlord might offer you time to move provided you agree to pay rent and move out by a certain date; or the landlord offer to forgive the rent if you move out by a certain date. The settlement offer will depend on the type of tenancy and how strongly the landlord wants you out of the apartment.
If the case is not settled or withdrawn, it will go to trial. The landlord must present its side of the case first, and must showing that what they claim is true. They will call witnesses, whom you will have the right to cross examine. If the court believes the landlord has met its initial burden, then it will be your turn to present your case, to explain or refute what the landlord has claimed. Then, the court will make its decision, which may be announced on the spot or more frequently, will be mailed to you within a few days. You have the right to make a brief opening and closing statement at the trial and in some cases both sides will be invited to submit written arguments on a particular point the judge wants amplified.
What will happen if I lose my holdover eviction case?
If you lose at trial, or settle the case by agreeing to move out and you consent to a judgment, you will be given a date to move out by. If you don't move out by that date, the landlord can hire a city marshal to remove you from the apartment. You have the right, after the judgment, to ask the court for more time to move. You do this by filing an Order to Show Cause in court - you should be prepared to show that you have been paying use and occupancy (rent) and that you have been looking for another apartment.
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