Holdover

What is a holdover case?

A holdover case is an eviction case brought by your landlord to evict you for a reason or reasons other than nonpayment of rent. Holdover cases often involve complex issues. Try to get legal assistance as soon as you receive a holdover petition. If you are unable to speak to an lawyer before your court date, you can ask the judge for a new court date or an adjournment to get legal advice. All holdover cases must start with certain notices and you must receive these notices in specific ways. There are also common reasons that landlords seek to remove tenants that are unique to certain types of housing.

What are some of the reasons for starting a holdover case?

In a holdover case, your landlord must tell the court why he or she wants to evict you. The reason or reasons should be listed on your holdover petition and may involve the following:

• You are a tenant without a lease and your landlord no longer wants you as a tenant.
• You do not have a legal right to the apartment because your lease has expired, or you are not the tenant of record.
• You violated a term or terms of your lease. For example, you have a washing machine or a dog in your apartment in violation of your lease.
• You, a guest, or a family member created a public nuisance or is involved in criminal activity.
• You repeatedly refused to allow the landlord access to your apartment at a reasonable hour when the landlord has good reason to gain access such as in an emergency or to make repairs.

Note: If you live in rent regulated, public, or subsidized housing you may have additional rights and the process might be different.

What should happen before I receive a Holdover petition?

In most cases, you should receive one of the following notices before a holdover case is started:

• A 10 Day Notice to Quit if you are not a tenant or if you are a squatter.

• A 10 Day Notice to Terminate if you are not a tenant or if you are a licensee or a squatter.

A licensee is someone the landlord allowed to stay without a rental agreement.
A squatter is an occupant of the premises without permission from the landlord or a tenant.

• A 30 Day Notice to Terminate if you are a rent-paying tenant without a lease or if you are a tenant in unregulated housing whose lease term has not expired.

These notices will tell you why you the landlord is trying to evict you. After the passing of the designated time period in these notices, the landlord may start a holdover case against you by serving you the holdover petition and notice of petition. However, if your lease is expired and the landlord has not collected any further rent, the landlord may start a holdover petition without giving your any prior notices. The landlord will send you a notice to cure if you are violating the lease or causing some other kind of problem. This gives you a chance to fix the problem. The landlord must then serve the notice to terminate before starting the case.

How should I receive these papers?

Most notices and the petition and notice of petition must be served by someone who is over 18 and who is not part of the case. The service can be personal service, substitute service, or conspicuous service.
Personal service means the court papers are handed to you.
Substitute service means the papers are handed to an adult who lives or works in your home and mailed to you by certified and regular mail.
Conspicuous service means the papers are either taped to or slid under your door and mailed to you by certified and regular mail.

What do I do if I receive a holdover petition?

If you receive a holdover petition, DO NOT ignore it. Read it carefully to determine the reason or reasons why your landlord wants to evict you. The notice of petition will tell you when and where you must appear in Housing Court. Go to the Housing Court at the time and place indicated.

What are some defenses for a holdover?

If your landlord is claiming that you violated your lease, you can dispute your landlord’s claim(s) and present evidence showing how you did not violate your lease. You may also have a defense if your landlord knew about the lease violation(s) and consented to it. Your landlord may have implied consent to the violation if he or she knew of the violation and did not do anything about it for a long time. (For example, if the landlord knew you had a washing machine or a dog for 3 months before the case.)

If your lease or tenancy has expired and you live in an unregulated apartment, your defenses are very limited, and you will likely have to leave your residence. However, if you believe the reason for your landlord not renewing your lease or tenancy and starting a holdover against you is that you complained about conditions in your apartment or because you tried to enforce certain rights as a tenant, you may have a defense called “retaliatory eviction.”

If the judge accepts your retaliatory eviction defense, the judge may throw out the holdover case or to give you time to move.

In addition, you may also have other defenses available based on your landlord’s failure to follow proper court procedures. The following are examples of these defenses:

• You did not receive the appropriate notices or other documents.
• The documents were not served on you the right way, for example, if you received the documents only by having it slid under your door, without it being mailed to you.
• Your name is not on the documents.
• The person or company bringing you to court is not the landlord or the owner of the building. If you are not sure who the owner of the building is, you can call 311 or google HPD online.

What is use and occupancy?

While the landlord cannot collect rent from you during the case, you might be asked to pay use and occupancy. The amount of use and occupancy is decided by the judge and is based on the reasonable rental value of your residence. Usually, this is decided by the agreed amount of rent you were required to pay before your tenancy expired. Your landlord typically requests the Court in the holdover petition to have you pay use and occupancy. However, you may ask the judge or try to reach an agreement with your landlord not to pay use and occupancy.

What do I do at my court hearing?

On the day of your court hearing, you might be approached by the landlord’s lawyer or the judge’s assistant and asked to settle the case by negotiation. For example, if you are a month to month tenant without a written lease you might agree to move out by a certain date and the landlord might agree that you don’t have to pay any “use and occupancy” or rent during the period before you leave. If you make this type of agreement, be reasonable in your expectation to move out quickly. If you do not move out by the agreed upon date, you may have to pay the use and occupancy.

If you come to an agreement, it will be written as a stipulation of settlement. The judge will review it with both parties to make sure you understand it and agree with its terms. This is the time to raise objections or ask questions.

Once everyone agrees, you, the landlord or his lawyer and the judge will sign it. The agreement is binding once it is signed.

If you can’t come to an agreement with the landlord, the case will go to trial. The trial will probably be on a different date and might be in front of a different judge. At trial, the judge will determine whether the landlord has proved his case and should be awarded a judgment of possession for the apartment.

You should bring to court any evidence, documents or witnesses that you need to prove your defenses. Once the judge makes a decision, the judgment will be mailed to you and the landlord. If the judge rules in the landlord’s favor, it should have a date by which you must be out of the apartment.

If I lose how long will I get to move?

If you go to trial and lose, the judge can give you up to 6 months to move out. The judge will consider factors such as why the holdover was brought against you, whether the landlord needs the apartment for family members, whether school age children in apartment will benefit by finishing out school year, age and health of tenants. You may have to pay use and occupancy during this time and if you do not make the payments you can be evicted sooner.

What if I cannot move out by the date?

If you have not moved out by the date that you agreed to in a stip or were order by the judge you can fill out an order to show cause (OSC) and request more time. However, the court can only give you 6 months. You should keep a record of your efforts to find new housing and put the details of your search in your OSC. If you were evicted for nuisance or involvement in criminal activity it might be very difficult to get more time.