I. General Procedures a Landlord Must Follow Before Resorting Before Filing An Eviction Proceeding
1) First the landlord must terminate the tenancy; and
The landlord can terminate the tenancy by providing the tenant with written notice, as required by state or city law [1]. If the tenant fails to comply with the notice then the landlord may commence an eviction proceeding in court. The notice requirements vary depending on the type of case, whether it is a nonpayment or holdover proceeding.
a) Nonpayment cases:
The landlord may bring a nonpayment case when the tenant fails to pay rent in accordance with the lease agreement. Generally, the landlord is required to give the tenant fourteen-day notice to pay rent in full or move out of the premises [2]. If the tenant fails to take action in terms of not paying rent or failing to move out then the landlord can file an eviction lawsuit with the court at the end of the fourteen-day period.
b) Holdover cases:
The landlord may bring a holdover case when the landlord seeks to evict the tenant due to the tenant violating the lease agreement or failing to move out of the apartment after the expiration of the lease. The notice requirements for a holdover case vary from the notice requirements of a nonpayment case in that the landlord must provide the tenant with two types of notices—notice to cure and notice of termination.
The notice to cure is the first notice to be sent which informs the tenant that he or she has ten or fifteen (depending on the lease agreement) days to correct the lease violation [3]. If the tenant cures the violation, then the landlord cannot take further steps to evict the tenant. But, if the tenant fails to cure then the next step would be for the landlord to give the tenant a notice of termination.
The notice of termination alerts the tenant that pursuant to the notice to cure, the tenant failed to cure the violation and the landlord now chooses to terminate the tenancy. The notice of termination will inform the tenant that the tenancy has been terminated because the tenant failed to cure the lease violation and the tenant has a certain number of days to vacate the premises [4]. If the tenant does not move out of the apartment, then the landlord may begin the eviction proceedings against the tenant in court.
2) The landlord must have cause.
Generally if the landlord seeks to terminate the tenancy early, or in other words have the tenant move out before the term of the lease expires, the landlord will need to have cause [5]. Cause could be established for a variety of reasons such as not paying rent or violating the lease or rental agreement.
If there is no cause then the landlord must wait until the end of the lease or rental period before requesting that the tenant moves out [6]. The landlord cannot end a tenancy early without cause. The landlord will still need to give the tenant notice, which depends on the period of the tenancy. For month to month tenancies, the landlord must provide the tenant with the following notice: a tenancy for a year, 30 days notice; a tenancy for one to two years, 60 days notice; and a tenancy for more than 2 years, 90 days notice [7].
If the tenant has a tenancy for a fixed period of time and the landlord does not have cause to terminate the tenancy early, then the landlord must wait until the end of the tenancy before asking the tenant to move out [8]. Upon expiration of the fixed term, unless the lease agreement states otherwise and unless the landlord accepts rent for the following month, the landlord is not required to give the tenant notice to move out [9].
II. If a Notice to Cure is Served Upon the Tenant- the Tenant Should File a Yellowstone Injunction to Toll the Time to Cure.
If a commercial tenant does receive a Notice to Cure from its landlord, then the tenant should file a Yellowstone injunction to toll the time period to cure the violation. A Yellowstone Injunction is a New York Supreme Court proceeding initiated by the tenant when the landlord seeks to terminate the lease because of an alleged default by the tenant. The Yellowstone Injunction is a type of temporary restraining order that prevents the landlord from prematurely terminating the lease. In other words, the Yellowstone Injunction asks the court to maintain the status quo while a matter is being heard in court, and the tenant is given the right to cure the alleged default without the notice to cure expiring [10]. Without the Yellowstone Injunction, the notice to cure period would expire before the judge could determine whether or not the tenant was in default and whether the landlord was entitled to terminate the lease [11].
III. Commercial Tenant Harassment:
New York City commercial tenants are protected from harassment by their landlord under the Non-Residential Tenant Harassment law. In order to show harassment by a commercial landlord, the tenant must prove: (1) the commercial landlord, or its agent, is doing something that is intended to make the tenant vacate the commercial property or surrender their rights under the lease; and (2) the landlord has engaged in one of the following wrongful acts:
• Using force or threatening to use force against the tenant or its customers;
• Causing repeated interruptions or discontinuances of the tenant’s essential services;
• Starting court proceedings against the tenant when he or she has not been in default under their lease;
• Removing the tenant’s personal property from the commercial property;
• Removing the entrance door, causing the lock of the entrance door to not work properly, or changing the lock without giving the tenant a key;
• Preventing the tenant from entering the commercial space;
• Interfering with the tenant’s business by doing unnecessary repairs or construction or
• Engaging in any other repeated conduct that substantially interferes with the operation of the tenant’s business [12].
If the court finds that the commercial landlord did engage in harassment, then it shall impose a civil penalty upon the landlord ranging from $1,000- $10,000 [13]. Additionally, the Court may also make the landlord pay the tenant’s attorneys fees if the tenant is successful in court.
The information above is intended to provide limited information only and is not legal advice. The laws in the context of the eviction process from a commercial building are complex. If you are a party to a matter concerning an eviction, or otherwise need further guidance in this or a related area of law, SINGH & RANI, LLP can assist you.
[1] https://www.nolo.com/legal-encyclopedia/the-eviction-process-new-york-rules-landlords-property-managers.html
[2] See Id.
[3]See Id.
[4] See Id.
[5] See Id.
[6] See Id.
[7] See Id.
[8] See Id.
[9] See Id.
[10] https://definitions.uslegal.com/y/yellowstone-injunction/
[11] https://definitions.uslegal.com/y/yellowstone-injunction/
[12] https://www.nycbar.org/get-legal-help/article/landlord-tenant/commercial-tenant-harassment-lawyer/
[13]See Id.
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