Columbia Law School

From the SelectedWorks of Hon. Gerald Lebovits

Spring 2021

Residential Landlord-Tenant Law (PPT) (Spring2021)Gerald Lebovits

Available at: https://works.bepress.com/gerald_lebovits/393/

FORDHAM UNIVERSITY SCHOOL OF LAW

Residential Landlord-Tenant Law

Prof. Gerald LebovitsSpring 2021

FROM BASICS TO CURRENT LAW

COVID-19 Implications

Impact of Housing Stability and Tenant Protect Act (HSTPA)

Court Structure and Appeals

Types of Tenancies

Residential vs. Commercial Proceedings

Purpose of Summary Proceedings and Basic Procedure

COVID-19: Impacts on Litigation in NY

Executive Orders

Administrative Orders

COVID-19: Force Majeure

COVID-19: Force Majeure

Force Majeure: Standard

• Act of God

• Lease must contain clause.

• Event must be specifically accounted for.

• Financial hardship insufficient.

• Narrowly construed. Kel Kim Corp. v. Central Markets, Inc., 70 N.Y.2d 900 (1987); Duane Reade, Etc. v. Stoneybrook Realty, LLC, 2009 NY Slip Op 04348 (1st Dept. 2009).

Applicability

• Lease must contain a force majeure clause that specifically excuses rent payment.

• Some leases excuse landlord’s delivery of services but specifically require that the tenant continue paying rent.

• Some clauses suspend performance rather than excuse performance entirely.

COVID-19: Frustration of Purpose

Frustration of Purpose: Standard

• Essential basis of the contract must be frustrated.

• Applies when performance is possible but, due to intervening unforeseeable events, the contract no longer gives the party the benefits that induced it to make the bargain.

• Remedy: Terminate the contract.

Applicability

• Landlords will argue that its application is unlikely because the COVID-19 shutdown is only temporary and because an inability to access the premises based on government restrictions was foreseeable.

• Tenants will argue that this doctrine can be applied to excuse rent during the months that they could not access the premises.

• De facto access (i.e., remote access)?

COVID-19: Impossibility

Impossibility: Standard

• Performance is excused if performance is rendered objectively impossible (i.e., when the subject matter of the contract is destroyed).

• Event must be unforeseeable.

• Applied narrowly.

• Financial hardship is insufficient.

Applicability

• Landlords will argue that paying rent is not impossible.

• Tenants will argue that impossibility of conducting operations should excuse rent performance.

COVID-19: Constructive Eviction

Constructive Eviction: Standard

• Requires a wrongful act by the landlord.

• Tenant must abandon the premises (or most of it).

Applicability

• This will apply only if the landlord committed a wrongful act.

Source of Income Discrimination

New York State Human Rights Law

• Amended, effective 4/12/2019, to prohibit discrimination based on source of income (has been in the law in NYC since 2008). https://www1.nyc.gov/site/cchr/law/source-of-income.page & https://dhr.ny.gov/sites/default/files/pdf/nysdhr-income-source-discrimination.pdf

• Intended to prevent turning away prospective Section 8 tenants.

• Also applies to Supplemental Security Income (SSI), HIV/AIDS Services Administration (HASA), CityFHEPS, G.I. Bill Housing Allowances, and Advantage Program vouchers.

HSTPA

Housing Stability and Tenant Protection Act of 2019

• Enacted on June 14, 2019

• Major changes to L&T law

HSTPA: Statewide Implications

Part G – “Statewide Tenant Protection Act of 2019”

•Expands rent regulation to jurisdictions outside New York City if adopted by local governments that have a housing emergency (defined by a vacancy rate of less than 5%).

HSTPA: End of Sunset Provision

Rent Regulation Permanent

•Tenants argue that repeal of the sunset provision eliminates a perpetual, existential threat to rent regulation and is justified by New York’s long-lasting shortage of affordable housing.

HSTPA: Rent Increases

Eliminates Luxury Deregulation.

• Tenants argue that luxury deregulation was a loophole that fueled tenant harassment by unscrupulous landlords trying to obtain prized vacancies.

• Landlords argue that protecting “luxury” apartments and “high income” tenants runs contrary to the policy objectives of the rent law.

Eliminates Vacancy Increases.

• Tenants argue that this eliminates the abuse that accompanies the financial motivation to evict tenants.

• Landlords argue that this eliminates the incentive to evict even nuisance tenants, illegal subtenants, and tenants using regulated apartments as pieds-à-terre.

HSTPA: Rent IncreasesReduction in Return on Individual Apartment Improvements (IAIs).

• Was: Permanent monthly increase equal to 1/40th of the cost of apartment improvements in buildings with 35 or fewer apartments and 1/60th in buildings with 36 or more apartments.

• Now: Increase revised to 1/168th (35 units or fewer) and 1/180th (more than 36 units). IAIs now temporary and will be removed 30 years from date the increase became effective. Only 3 IAIs over 15 years permitted, for total aggregate cost of $15,000. The most a landlord may increase the rent with IAIs is $89 for buildings with fewer than 35 units and $83 for buildings with more than 35 units.

Reduction in Return on (Major Capital Improvements) MCIs.

• Was: Permanent increase based on actual cost of building improvements amortized over 8 years for buildings with 35 or fewer apartments and 9 years for 36 or more apartments.

• Now: Annual cap decreased from 6% to 2% and amortization period extended to 12 years if 35 units or fewer and to 12.5 years if greater than 35. MCI increases are now temporary and will be removed 30 years after effective date.

• Retroactive Application: DHCR will deny pending MCI application filed before HSTPA (must abide by the 35% rule – MCIs prohibited for buildings with 35% or fewer rent-regulated units).

HSTPA: Statutes of Limitations

Rent Overcharge Damages

• 6 years (prospectively)

Rent Base Date Determination

• Prospectively, base date rent is calculated by using the most recent reliable rent registration filed six or more years prior to the most recent registration and adding subsequent lawful increases (e.g., RGBs (Rent Guidelines Board), MCIs, IAIs, vacancy increases, longevity increases, etc.).

• Entire rental history is reviewable to determine the reliability/legality of a rent charged or registered.

HSTPA: Treble Damages

Before

• 2 years

• Safe Harbor Rule (voluntary rent adjustment and refund can rebut willfulness presumption)

Now

• 6 years

• Safe Harbor Rule eliminated

• Awarded solely for failing to file rent registrations

HSTPA: Court of Appeals

Retroactivity

• Matter of Regina Metro. Co., LLC v. N.Y.S. Div. of Hous. & Community Renewal, 2020 NY Slip Op 02127 (Ct. App. 2020).

• Held that application of HSTPA’s rent overcharge amendments retroactively to overcharges that predated its enactment (6/14/2019) violates due process.

• Return of the “four-year rule” (overcharge claim calculated using the rent charged four years prior to the filing of the complaint plus applicable legal increases – absent fraud).

• Legislature may not reverse this decision; it was a due-process issue under NYS Constitution.

• Case also discusses all that’s wrong with HSTPA’s overcharge retroactivity. Legislature possibly able to correct some of its “errors” (e.g., change lookback to 6 years).

HSTPA: Impact on Real Estate Brokers

Broker Fees

• According to DOS guidance interpreting HSTPA, broker fees can be charged only to the landlord, not the tenant (a pending Albany lawsuit seeking clarity on this). https://www.dos.ny.gov/licensing/pdfs/DOS-Guidance-Tenant-Protection-Act-Rev.1.31.20.pdf.

Application Fees

• Landlords (and brokers) are prohibited from collecting an application fee greater than $20.

• If the prospective tenant provides a copy of a background check or credit check conducted within the past 30 days, the fee must be waived.

• Fee is not collectible unless the broker provides the prospective tenant with a copy of the background check or credit check.

Tenant’s Past Conduct

• Landlords (and brokers) may not refuse to rent to a prospective tenant on the basis that the prospective tenant was involved in a past or pending L&T action.

HSTPA: Owner’s Use

Owner’s Use Proceeding

• Commenced when the landlord seeks to regain rent stabilized apartments for the landlord’s (or landlord’s family’s) use.

• Before: Landlord was required to show a “good faith intent” to so use.

• Now: Landlord must show an “immediate and compelling need” for the apartment sought and is limited to regaining a single apartment.

HSTPA: Blacklisting

Before

• Public (including court) records were used to compile “blacklists” of tenants who have had court proceedings against them.

• Landlords used these records to screen rental applications, regardless whether there was a legitimate basis for the proceeding.

Now

• A rental application may not be refused on the basis of a past or present landlord-tenant action or summary proceeding under RPAPL Art. 7.

• Attorney General has enforcement power; no private cause of action.

HSTPA: Other Implications

Reduced Litigation Volume and Fewer Buyouts

• Dramatic reduction in filing of new summary proceedings. Landlords can obtain only minimal rent increases and deregulation is nearly impossible.

Trial and Motion Practice

• May be waiting a year before going to trial, due to added adjournment opportunities and time extensions.

• Tenants are now more frequently represented by counsel, resulting more fairness for tenants but also in increased motion practice and delay.

HSTPA: Other Implications

Free Market Termination Notices (RPL §226-c)

• Depends on the duration of the tenancy.

• A tenancy of up to one year is entitled to a 30-day notice; up to two years is entitled to a 60-day notice; and if the tenancy was more than two years, then a 90-day notice is required.

• The failure to serve the proper type of notice will result in dismissal of the summary proceeding.

Additional Legislation?

Additional Tenant Protections

• Tenant advocates seeking legislation requiring good-cause evictions.

• Recapture previously deregulated apartments.

• HSTPA did not revive deregulated units. 191 Realty Assoc., L.P. v. Tejeda, 2019 NY Slip Op 51864(U) (App. Term 1st Dept. 2019).

• Tenants want a private cause of action for harassment to recover damages.

Litigation Forum

• The forum for litigation depends on the type of case.

Supreme Court

Money Judgments

• In the L&T context, a landlord seeking only monetary relief (not possession of premises) may bring a plenary action in Supreme Court and other courts.

Declaratory Judgments

• Housing, City, District, Town & Village Courts do not have jurisdiction to order declaratory relief.

Article 78 Proceedings

• Litigants in administrative proceedings (such as at NYS HCR –formerly DHCR) can seek review in Supreme Court of an agency’s decision in an Article 78 proceeding.

Summary Proceedings vs. Plenary Actions

Summary Proceeding

• Commercial and Residential

• Petitioner and Respondent

• Intended for expedited adjudication

Plenary Action

• Plaintiff seeks monetary relief

• Supreme Court

• City & District Courts

• Small Claims Court

Supreme CourtEjectment Actions

• Brought in Supreme Court unless jurisdiction is specifically granted to some other court by statute (e.g., NYC Civil Court has jurisdiction if value of the premises is less than $25,000).

• Preferred action when the occupant has an interest, other than a tenancy that falls outside the tenancies recognized under RPAPL Article 7.

• Permits recovery of “rents and profits” that the occupant collects after (but not before) the possessory interest terminates.

Yellowstone Injunction

• Commercial tenants, as well as residential tenants outside New York City, are not entitled to a statutory cure period once the court rules in the landlord’s favor and grants a judgment of possession.

• In First National Stores, Inc. v. Yellowstone Shopping Ctr., Inc., 21 N.Y.2d 630 (1968), the Court of Appeals held that a tenant can prevent the forfeiture of the tenancy by obtaining an injunction (now commonly known as a “Yellowstone” injunction) prior to the expiration of the notice to cure and issuance of the notice of termination. That will stay the landlord from terminating the lease while the court determines whether a breach has occurred.

HSTPA: Forum

Forum

• Removes HCR’s primary jurisdiction over rent overcharge complaints.

• HCR and courts have concurrent jurisdiction. HSTPA gives the tenant the choice of forum. Collazo v. Netherland Prop. Assets LLC, 2020 NY Slip Op 02128 (2020).

NYC Housing and Civil Court

Housing Court

Judges

•Appointed for 5-year terms by the Chief Administrative Judge of the Unified Court System, who makes selections annually from a list of prospective judges approved by the Housing Court Advisory Council.

Housing Court

Parts

• Universal Access Part

• HP

• Zip Code Part (Legal Aid Society, NYLAG, MFY Legal Services)

• Resolution Parts

• Trial Parts (bench trials only; no jury)

• Part X

Summary Proceedings: Jurisdiction

Subject Matter Jurisdiction

• Respondent (tenant or occupant) must possess the property when the proceeding is commenced.

• Otherwise, landlord must sue for damages in a plenary action.

Parties

• Tenant

• If applicable, subtenants and other occupants (to execute judgment of possession).

Summary Proceedings: Commercial

Nonpayment

• Statutory remedy.

• Rent demand: Predicate notice.

Holdover

• Based on lease expiration/termination.

• Lease must provide a basis for termination.

Significant Focus on Lease Terms

• Commercial tenancies are less regulated than residential tenancies.

• Courts will look to lease language in determining rights and obligations.

• NYC: Civil Court Part 52.

• Unlimited monetary jurisdiction.

Fewer Statutory Defenses

• No waiver, estoppel, or laches (unless allowed by lease).

• No abatement (unless allowed by lease).

Summary Proceedings: Residential

Nonpayment

Holdover

HP

Illegal Lockout

7A Administrators

Harassment

Summary Proceedings: Holdovers

Breach of Substantial Obligation of Tenancy

•Unauthorized Sublets

•Specified Use or Purpose

Nuisance

•Hoarding

•Chronic Late Payment of Rent

•Access

•Destruction of Premises

• Illegal Occupancy

• Illegal Use

Recovery of Rent-Regulated Units

•Nonprimary Residence

•Owner’s Use

•Demolition

•Failure to Renew

•Profiteering

Summary Proceedings: Holdovers

Nontenants

• Proceedings by purchasers in foreclosure

• Licensee proceedings

• Squatters

• Occupant remaining in possession after sale of the premises

• Vendee in possession after default under contract of sale

• Occupant under cultivation agreement

• Employer-employee proceedings

• Occupant after termination of life estate

• Occupant by forcible or unlawful entry

Types of Residential Tenancies

Market Rentals

Rent Stabilized

Rent Controlled

Public Housing (NYCHA, etc.)

Section 8

Co-op/Condo

• Subsidized cooperatives government by PHFL (Mitchell-Lama, HDFCs, etc.)

Lofts

SRO

Rent Stabilized and Rent Controlled

Rent Stabilized

• Applies to buildings of six or more residential units built before January 1, 1974.

• The addition of a sixth unit to a building built before 1/1/1974, even if the unit is added after 1974 and even if the added unit is illegal, brings the entire building under rent stabilization.

Rent Controlled

• Tenants are generally in buildings built before 2/1/1947, if the tenant has been in continuous occupancy before 7/1/1971.

ETPA

• Extends rent-stabilization coverage to apartments in buildings built before 1974 containing six or more units, located in certain municipalities in Nassau, Westchester, and Rockland counties that have declared housing emergencies under the ETPA.

HCR (Formerly DHCR)

• State agency responsible for administering NY’s rent regulations.

Rent Stabilized and Rent Controlled

Waiver

•Agreements providing for the surrender of a regulated unit are permitted, but agreements waiving any right or protection of rent regulation are void.

Summary Proceedings: Pleadings

Strict Pleading Requirements

• Description of the premises.

• Petitioner’s interest in the premises.

• Facts upon which the proceeding is based:

• (a) Holdover: How tenancy was terminated and whether the tenant continues in possession.

• (b) Nonpayment: Amount of rent demanded.

• (c) The lease.

• In NYC: Rent regulatory status of the premises (even in commercial summary proceedings).

• In NYC: Multiple dwelling registration (MDR) compliance.

• Relief sought:

• Must seek a judgment of possession and warrant of eviction.

• A nonpayment petition will also seek a money judgment for rent arrears.

• Legal fees.

Nonpayments and Holdovers

Predicate Notice

• Nonpayment: Rent Demand

• Holdover: Termination Notice (and Notice to Cure, if applicable)

• “Golub” Notices (90-120 days before termination; nonprimary-residence, owner’s use) are rare now –reduced incentives to evict for nonprimary residence after HSTPA.

Answer

• Defenses, affirmative defenses, and counterclaims

Nonpayment Defenses and Counterclaims

Defective Pleading

• Failing to Accurately State Regulatory Status and Compliance with Rent Laws

• Omitting or Misstating Required Elements of the Petition

Traverse/Service

Lack of MDR (NYC Only)

Lack of a Proper Certificate of Occupancy

Breach of Warranty of Habitability (Also Counterclaim)

Rent Overcharge (Also Counterclaim)

Constructive Eviction

Retaliatory Eviction

Laches and Waiver

Statute of Limitations

Harassment (Counterclaim Only)

HSTPA: Procedural Impacts

Nonpayment Extensions

• Landlords now required to notify tenants by certified mail if rent is not received within 5 days of due date. Probably applies only to residential tenancies.

• Rent Demands: 14 days (from 3)

• Answer Deadline: 10 days (from 5)

Holdover Extensions

• Petition must be served at least 10 days and no more than 17 days before it is noticed to be heard (was 5 and 12 days, respectively).

• Answer: Can be served on the return date (was 3 days before the initial court date if petition was served 8 days before return date).

Court Procedure

• Adjournments: Mandatory 14-day adjournment if requested (from 10)

• Adjournments: Automatic if pro se litigant requests time to find lawyer

Timeline

First Time On

Resolution Part

• Pre-Trial Motions

• Discovery

• Settlement Emphasized

Traverse Hearing (in resolution part or, more likely, trial part)

Part X

• Clerk’s Office

• Mandatory pre-trial settlement conference (in trial part)

Hearing(s) & Trial

Default in Answering

Default Judgment

Inquest

HSTPA

• Landlord may not recovery attorney fees on residential default judgments.

Post-Default OSC

• Tenant must demonstrate both a reasonable excuse for default and the existence of a meritorious claim.

• Tenant can file a post-eviction OSC if it was evicted based on the default judgment.

HSTPA: Use and OccupancyRPAPL 745

• Rent-deposit orders were mandatory if the statutory prerequisites were met. Judges now have total discretion in deciding whether to issue a rent-deposit order.

• Request must be made by motion (oral applications no longer sufficient).

• Motion may not be made until 60 days after the parties’ first court appearance or 2 adjournment requests solely by tenant; only days attributable to respondent’s adjournment requests are counted.

• When 2 adjournments or 60 days are attributable to respondent, and petitioner files a written motion for rent deposit or use and occupancy, court may order a deposit of rent or use and occupancy, but only for sums of rent or use and occupancy that accrued after the date of the order.

• Unrepresented tenant’s first request to obtain counsel does not count as an adjournment or as part of the 60 days in determining if application for rent deposit timely.

HSTPA: Use and Occupancy (cont.)

RPAPL 745

• Hearing now “as soon as practicable”; minimum 14-day adjournment for trial given to either party unless both sides and court agree to shorter adjournment; court has the sole discretion to grant a second or subsequent request for adjournment.

• Tenant can defend against a rent-deposit order by establishing one of the following:

• (a) the petitioner is not a proper party to the suit;

• (b) actual, partial, or constructive eviction, and respondent has vacated;

• (c) defense based on Social Services Law § 143b (Spiegel Law);

• (d) defense of existing hazardous or immediately hazardous violations of the Housing Maintenance Code in respondent’s unit or building common area;

• (e) colorable defense of overcharge;

• (f ) lack of personal jurisdiction; and

• (g) unit violates building’s certificate of occupancy or is illegal under Multiple Dwelling Law.

HSTPA: Use and Occupancy (cont.)

RPAPL 745

• Failure to pay use and occupancy or deposit rent may not result in dismissing any of respondent’s defenses or counterclaims or a money or possessory judgment.

• Only penalty for failure to comply with a rent deposit order is that, at the court’s discretion, an immediate trial may be ordered, but the tenant’s time to deposit may be extended for good cause.

HSTPA (continued)

Anti-Retaliation:

• Old & new law: Landlords were prohibited from commencing a holdover proceeding in retaliation for the tenant’s complaints of violation of health or safety laws, taking action to enforce rights under the lease or law, or participating in a tenant organization.

• HSTPA: Anti-retaliation expanded to include good-faith complaints to the landlord itself about the warranty of habitability or duty to repair.

• Expands rebuttable presumption that landlord is retaliating if complaint made within one year of landlord’s action (from six months).

• Potential retaliatory action now includes offering a new lease with an “unreasonable” rent increase

Residential landlords are now required to mitigate damages.

• If a tenant vacates the premises in violation of the lease, the landlord must take “reasonable and customary actions to rent the premises at fair market value or at the rate agreed to during the term of the tenancy, whichever is lower.”

HSTPA (continued)

Actual Rent vs. Additional Rent

•Only actual rent (amount charged for use and occupancy of the residence) may be sought in a summary proceeding.

Settlement

Judgment

• Judgment entered immediately, butstayed provided that tenant complies with stipulated obligations.

“Settle-Per-Stip”

• Requires motion by landlord for entry of a judgment.

Orders to Show Cause (OSCs)

Post-Default

•Tenant may seek additional time to comply with a stipulation and further stay enforcement of a judgment of possession by order to show cause.

Trial

Prima Facie

• Evidence that will establish a fact or sustain a judgment unless contradictory evidence is produced (creates a rebuttable presumption).

Defenses

• Respondent’s burden of proof

Judgment

Attorney Fees to Prevailing Party?

• Depends on lease (commercial and residential)

• Reciprocal right (residential only – RPL 234)

• Controversies?

HSTPA: Post-Judgment Relief

Warrants

• Added rights statewide in motions to be restored to possession.

• After judgment is entered in a nonpayment proceeding, the court must vacate the warrant if tenant pays the full rent due.

• Automatic 30-day post-trial period to cure breach.

• Issuance of warrant no longer cancels the landlord-tenant relationship.

Marshal’s Notice

• Extended from 72 hours to 14 days.

Reletting or Renovation

• Court may stay the reletting or renovation of the premises for a reasonable amount of time after judgment is entered.

• In residential proceedings, warrants may be stayed for one year (previously six months in NYC; 4 months elsewhere) if tenant will suffer extreme hardship if evicted.

Article 7-A Administrators

RPAPL Article 7-A

• Residential tenants in NYC, or in the counties of Nassau, Suffolk, Rockland, or Westchester, confronted with building conditions that raise health or safety issues may petition for an administrator to take control of the rent roll to make necessary repairs.

Special Proceedings

• Article 7-A proceedings are special proceedings brought by notice of petition and petition.

• Petition must be signed by at least one-third of tenants in the building.

• HPD, or any other county official “charged with enforcement of the housing maintenance code” also has standing to commence an Article 7-A proceeding.

Harassment

New York City Tenant Protection Act

• NYC’s Local Law 7 of 2008, the Tenant Protection Act, codified as part of the HMC, provides a cause of action to any lawful occupant of a dwelling whom an owner has harassed or caused to vacate.

• If a claim of harassment is based on allegations relating to the disruption of essential services, alleged habitability issues, or acts or omissions motivated by an intent to cause a lawful occupant to vacate the premises, the claim must be substantiated by at least one violation of record for each physical condition alleged.

• Lawful occupant may bring an OSC in Housing Court to restrain an owner from engaging in harassment, broadly defined to include acts or omissions that substantially interfere with a lawful occupant’s comfort, peace, or quiet.

• On September 3, 2015, the Mayor of New York City signed legislation expanding the definition of tenant harassment to include repeated attempts by a landlord to pay a tenant to vacate, or “buyout,” a tenant, within six months of the tenant’s having previously declined an offer.

Harassment

Expanded Definition Resulted in More Harassment Cases

• Lying to a tenant in some manner related to the occupancy of the unit.

• Lying about rent regulation or construction.

• Interrupting services if there is a history of interruptions elsewhere in the building.

• Repeatedly failing to cure violations.

• Repeatedly falsely certifying the correction of violations.

• Repeatedly engaging in construction that requires a permit without having such a permit.

• Bringing a frivolous action against a tenant if there is a history of other frivolous actions against other tenants in the building.

• Repeatedly contacting or visiting a tenant on Saturdays, Sundays, holidays, or outside of business hours.

• Threatening any person based on “such person’s actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, caregiver status, uniformed service, sexual orientation, alienage or citizenship status, status as a victim of domestic violence, status as a victim of sex offenses or stalking, lawful source of income or because children are, may be or would be residing in such dwelling unit.”

HP Proceedings

NYC Housing Part (HP): Affirmative Relief

• Hears habitability issues under the Housing Maintenance Code (HMC), Multiple Dwelling Law (MDL), and the Building Heath, and other codes of the New York City Administrative Code.

• Outside NYC, tenants can assert only violations of applicable housing codes and ordinances as a defense in a summary proceeding, although some municipalities have enacted local enforcement mechanisms.

Typical Violations:

• Lack of gas

• Lack of hot water

• Cascading leaks

• Lack of heat

Alleged Illegal Lockouts (Reverse Holdover)

Lockout Proceeding

• Petitioner must have been “in actual possession” or “in constructive possession” at the time of the forcible or unlawful detainer.

• Prevailing petitioner is restored to possession, but a licensee or employee may not maintain a lockout proceeding.

• Courts have found an illegal lockout to have occurred if the locks are changed, the tenant’s property is removed, access is denied, or the entry is forcible, even if a lease between the parties permits these measures.

Pro Se Litigants

Housing Court judges may take an active role to assist pro se litigants.

Testifying in the narrative.

• Witness relates a story rather than specific facts.

Presumptive Mediation for Double Pro Se Cases

APS and GALs

Adult Protective Services (APS)

• NYC: APS unit of the NYC Human Resources Administration may be called upon to intervene on behalf of adults who are unable to manage their daily affairs .

Guardians Ad Litem (GALs)

• Appointed for individuals who are unable to assert their claims and defenses and, in general, to protect their rights.

• The GAL is an officer of the court who must report to the court.

• A Housing Court GAL can only assist in the pending proceeding. If a ward’s needs cannot be addressed in the summary proceeding, a proceeding can be commenced before Supreme Court under MHL Article 81 or in Surrogate’s Court to appoint a guardian who can manage the person’s property and financial affairs.

NYC Access to Justice Program

Provides free representation to qualifying tenants based on income.

Administered based on tenants’ zip code.

Additional zip codes to be included in rollout.

Additional Information and Sources

Daniel Finkelstein & Lucas A. Ferrara, Landlord and Tenant Practice in New York (2020 ed.)

Gerald Lebovits, Damon P. Howard & Michael L. Weisberg, New York Residential Landlord-Tenant Law and Procedure (12th ed. 2020)

Andrew Scherer, Residential Landlord-Tenant Law in New York (2019) (with Judge Jean Schneider’s Views for the Bench)

Robert F. Dolan, Rasch’s Landlord and Tenant Including Summary Proceedings (5th ed. 2017-19)