Housing Hub

Protected characteristics for buyers of homes and renters:

1. Federal: Race, Color, Religion, Sex, Disability, Family Status and National Origin;
2. State: Sex, Age, Marital Status, Military Status, Disability, Family Status, National Origin, Sexual Orientation, Gender Identity, Source of Income.

Prohibited Actions Include:

1. Refusal to sell/rent because of one of the above characteristics
2. Discrimination based on protected characteristics in terms of sale, conditions of sale or rental
   1. Advertising the sale of a unit indicating a preference, limitation or discrimination
   2. Coercing, threatening, or interfering with a person’s enjoyment or exercise of housing rights
   3. Retaliation against a person or organization that encourages the excise of Fair Housing

Protected Sources of Income:

1. Child support
2. Alimony or spousal maintenance
3. Foster care subsidies
4. Social security benefits
5. Federal, state or local public assistance
6. Federal, state or local housing assistance (including Section 8 or other voucher forms of assistance)
7. Any other form of lawful income

Who cannot Discriminate?:

1. Owners and Landlords
2. Managing Agents or Companies
3. Co-op Boards and Condominium Associations
4. Tenants seeking to Sublet
5. Real Estate Brokers and Salespersons
6. Any Employee or Agent of the above

Recourse:

1. Federal: File a complaint through the Office of Fair Housing and Equal Opportunity, and HUD’s Office of General Counsel
2. State: Albany Regional Office of NYS Division of Human Rights at 518-474-2705

For “reasonable accommodations”, tenants must meet the statutory definition of having a disability. Tenants should request an accommodation in writing from the landlord. Requests should state the tenant has a disability and explain how the accommodation will help enhance the tenants ability to enjoy their home and lessen the effects of their disability. Requests should include a note from a service provider, doctor or therapist verifying the need for accommodation. There is no need for disclosing details of disability or medical history.

If the accommodation is ‘unreasonable’, the landlord can offer a substitute accommodation with an explanation of why the primary request is not being met. In private housing, the landlord can require the tenant to pay for the cost of the modification. The landlord can under certain circumstances request the tenant create an account with deposits equal to the amount necessary to restore the unit to its original conditions if the adaptation made may interfere with the use and enjoyment of the unit by the next tenant.

Emotional Support Animals:

Even if a landlord explicitly prohibits pets, a tenant with disabilities can keep their emotional support animal. Usually a letter from a therapist or physician will suffice.

1. Nonpayment of Rent
   Notices are sent if the tenant fails to pay rent in the 5-day grace period. The landlord must provide a written rent demand -served through mail- granting the tenant a 14-day notice to pay or vacate. Rent due can only be the agreed upon cost of a unit. Tenants cannot be evicted for not paying late fees. (IMPORTANT: Late fees can only be 5% of the monthly rent or $50, whichever is lower). If a lease includes an ‘added rent clause’ it is void.
2. Holdover for Remaining past the date of Termination
   There must be either a fixed term lease for this kind of proceeding, or have had proper notice served if the tenant is on a month-to-month lease. Proper notice of lease termination must be in writing, but does not need to be notarized or overly formal. At this time, the landlord is not required to provide reasoning for this type of action. A lease termination does not absolve the tenant of the obligation to pay rent until the last day of the tenancy.
   Once proper notice has been served of a termination of tenancy, the landlord may bring a holdover eviction if the tenant remains in the property. If the tenant pays rent after the tenancy has ended and the landlord accepts the rent, that action invalidates the notice and the landlord must reissue the proper notice of lease termination.
3. Holdover for Breach of Lease
   If the landlord asserts a material noncompliance with a lease provision, the landlord should provide a notice to correct the violation (typically 3, 5, or 10 days notice) and be in accordance with the lease language. If the tenant corrects the violation, the issue is resolved. If the case goes to court and is found to have violated the lease, the court shall give the tenant 30 days to correct the violation. Failure of the tenant to cure the breach will likely result in eviction. Landlords can further protect themselves with occupancy rules.
4. Holdover for Squatters
   A property owner may bring a squatters petition if there is no landlord-tenant relationship between the owner of the apartment and the occupant. This may be because the owner bought the property in a foreclosure sale, because the occupant has moved in as guest of a tenant, or because the occupant moved in as a “squatter” and is living in the apartment without anyone’s permission. The property owner must serve a Notice to Quit that tells the occupant they have 10 days to move or will be brought to court.

Once the landlord has served a predicate notice (such as a rent demand, 30/60/90 day notice, notice to cure, etc.) and that notice (or the lease) has expired, the landlord is within their rights to file for eviction in the court where the unit it’s located.

If successful in the case, the landlord will usually be entitled to recoup the approximate $45 filing fee. Both parties can negotiate that fee and reduce or waive the cost as leverage in the settlement. Usually the judge won’t tie the fee to an eviction, but it depends on the court.

Service of Court Papers

Service of court papers should be completed between 10-17 days prior to the court date that was given to the landlord at the time filed. If received before or after, the defendant may be entitled to having their case dismissed.

A disinterested third party -on behalf of the landlord- must serve the court papers upon the tenants in one of three ways if the landlord is seeking both a money judgment and a warrant of eviction, in the form of certified mail, regular mail, or personal service. Service should not be completed on a Sunday, papers must be served to a person of suitable age (generally age 14 and above), and papers cannot be served where the tenant works. An affidavit of service must be filed by the landlord illustrating that service was completed properly. If a landlord fails to do so, their case may be dismissed.

Court Process, General

After the papers are served, the tenant should prepare for their first court appearance. Failure to appear results in a “default judgment”, meaning the landlord is given a warrant of eviction that is effective immediately, and a judgment for unpaid rent that was sought so long as personal service of court paper was attempted. So be sure to show up!

Landlord still needs to execute the warrant by bringing it to a sheriff for the 14-day notice to be served, even if the tenant defaults. For a non-payment of rent eviction where the tenant comes up with the full amount prior to the court date, payment in full should cure the nonpayment issue. This should also be the case before an eviction is executed. If your landlord refuses the rent and continues to execute the warrant, the tenant may wish to file an Order to Show Cause with the court. Similarly, if the tenant fails to appear for a good reason, the tenant should file an Order to Show Cause.

First Appearance

If a Settlement is reached:

Parties are often given an opportunity to settle a case outside of the courtroom. This is where parties can stipulate an agreement that becomes a court order.

Common Settlements:

Payment Plans:

1. ”Stayed Pending Payments”, the tenant makes a certain number of payments towards arrears along with the current rent to keep their housing. In this case, there is still a warrant of eviction issued, meaning if the tenant misses a payment (“by a dollar or a day”) the landlord is within their rights to execute the warrant without filing for court again. If the tenant does miss a payment, they can stop eviction with FULL PAYMENT).
2. ”Warrant with Stay” (or vacating on consent) is when a tenant with leverage might negotiate an extra month in the apartment and forfeit their deposit for unpaid rent. For example: A warrant of eviction might be issued but stayed until the agreed upon date. If the tenant fails to vacate by the agreed upon date, the landlord is within rights to execute the warrant of eviction without filing again.
3. “Lockout Warrant” (vacating on consent) means that the lockout can be as early as the stipulated date. There would be no 14-day notice timeframe if the tenant remains past the date of the lockout warrant.

No Settlement:

1. Tenant has a legal defense:
   1. A tenant can request 14-day adjournment at their first appearance to seek counsel or advocacy.
   2. A case can be set for trial if there is a dispute of facts like how much rent is owed, the code violations in the apartment, or how the tenant was served the court paperwork
      (usually a separate date well into the future)
2. Tenant has NO legal defense
   1. Judge will usually issue an order of eviction and money judgment for unpaid rent, but with some discretion because the tenant appeared. Tenants should ask the judge for more time to move out, but there is no guarantee this will be granted.

Trial

Parties are given a full hour to make a resolution before the judge where they can bring forth evidence to support their claim and then the judge makes their decision. If an agreement cannot be reached, the court will hear the case. Both parties will be expected to present evidence to support their arguments. For tenants this might include receipts to show rent was paid, pictures of code violations, evidence that the tenant has notified the landlord of an issue. All documents and pictures should be printed out ahead of time to be given to the court.

An Order to Show Cause is a tool to help tenants navigate the ‘justice’ system and enter their case for review. There is no cost to file an order to show cause in City and Town courts.

In eviction cases:

If a tenant misses a court date they may file an OTSC to explain why they missed the court date (reason out of their control) and their need for a second opportunity to defend themselves. Example: The tenant received a 14-day notice without being properly served and therefore had no knowledge of the court date.

If a tenant attends their court date, an OTSC can be used when the tenant abided by the court ordered stipulation but still received a 14-day notice (if they believe in error); or the tenant entered into court ordered stipulation including a landlord obligation, for which the landlord did not fulfill.

In Small Claims Court

An order to show cause is usually used to vacate a default judgment in a small claim. When a tenant realizes a judgment has been issued against them for unpaid money, the tenant should call the local court to ask if a case was filed:

• If a case was filed and default issued, an OTSC is the best route
• If no case was filed and a judgment was obtained without a claims process, the tenant should get legal advice.

This may happen if a tenant breaks a lease or moves out of an apartment and the landlord knowingly sues them at the address where they no longer reside. In this instance, the landlord wins a default judgment because the tenant was not properly notified. Because of this, the tenant can issue an OTSC and have the case reopened.

Main Parts of an OTSC Application:

The tenant should indicate the lawful reason they did not attend court, such as the failure by the landlord to serve the paperwork, or that the tenant did appear in court but has received a 14-day notice they believe in error.

Here, the tenant must make a proper defense of their actions and need for their OTSC. It should be noted even if the tenant had a legal reason to be absent from court, if they have no case the judge may not grant them an OTSC.

If the judge signs the order, the tenant will usually need to serve the sheriff and have someone disinterested serve the landlord, and file an affidavit back with the court; in which case, the 14-day notice will stop and the landlord will get a notice to reappear. Both parties will need to reappear to ‘show cause’ to the court, and the court case will go through the general course explained above.

A 14-day notice is served by a sheriff, marshall or constable. It is the first of the final steps toward eviction. The delivery must be triggered with a signed warrant of eviction from a judge. An eviction can take place without a court process, though tenants have a right to defend themselves.

If a tenant was not petitioned to go to court, they should seek an OTSC. If the tenant has fully complied with the 14-day notice, they should go to court immediately to file an OTSC. If the judgment for eviction is entered into court it may be tied to a specific day if an agreement was reached or if the judge gave discretion, meaning that if the tenant continues to occupy the residence a day later than the warrant is stayed, the landlord can move forward with eviction. If the tenant signs into a payment stipulation and fails to pay the exact rent, the landlord can move forward with the eviction process:

• The landlord may apply for an amended warrant at the court if there was a court stipulation, but they will not have to petition the tenant back to court.
• The landlord may have a live warrant that does not need to be amended.
• Upon receiving a ‘live warrant’, the landlord can execute the warrant of eviction at any time. This is done by the landlord bringing the warrant to the sheriff and the sheriff serving the 14-day notice to the tenant. This can be done by mail, postal notice or personal delivery. Once this occurs, the 14-day timeframe begins. The warrant can be executed on a business day between sunrise/sunshine. Weekends and holidays are counted in the 14 days but the lockout cannot occur on those days.

If the tenant receives a 14-day notice, they should pack all valuable and essential belongings and begin planning for relocation as soon as possible. After the notice expires, the landlord and sheriff will come to change the locks, at which point, the rental is no longer in the tenants possession.

In a nonpayment of rent eviction, the tenant will have the right to pay the full rent due at any time prior to its actual execution. The tenant should bring the full amount due to court and owed to the court.

Once the tenant is locked out legally, they should be informed that NYS is “A RIGHT TO SHELTER STATE”, meaning after an eviction occurs they have a right to emergency shelter. Before 4:30 on weekdays, the tenant should go to Albany County Department of Social Services at 162 Washington Ave to access emergency shelter. After 4:30 on weekdays or anytime on holidays, the tenant should contact Homeless And Travelers Aid Society at 138 Central Ave, which provides ‘after hours’ homeless shelter access in Albany. HATAS can be reached anytime at 518-463-2124.

After the lockout:

The owner of the property where the eviction took place has ‘fiduciary responsibility’, or obligation, to keep the tenants’ belongings safe and dry for a reasonable amount of time. This does not have to be in the unit. A reasonable amount of time is usually considered 14-30 days. It is illegal for landlords to hold tenant’s belongings for ransom. However, they can charge the tenant for the store unit’s cost if that is where the belongings are to be located.

Illegal Lockouts:

If a lockout occurs without a tenant having received a petition to court or a 14-day notice, it may be an illegal lockout.

• First, the tenant should call their local court to see if a case has been filed against them and if a default was entered. If there was and the caller was not made aware of the process they should file an OTSC or get legal assistance immediately.
• If no case was filed against the tenant, they should contact the non-emergency police in the area and request assistance with getting back into the home. It is a Misdemeanor A for a landlord to illegally evict a tenant. A tenant can also sue for damages, separately.

Illegal Lockouts are classified as a Class A Misdemeanor

• If illegally locked out, the tenant may break in and recover possession of the apartment with the assistance of a police officer. The officer will complete an Significant Incident Report (SIR) detailing the facts/circumstances. If the officer is reluctant to complete an SiR, the tenant should persist as much as possible.

The tenant should also get the badge number and name of the officer.

Money Judgments

Possessory Judgment – Judgment (rent) is tied to the tenants right of stay. The debt is tied to a warrant of eviction. A tenants inability to pay a possessory judgment debt results in eviction. Sometimes the judgment is a single lump sum payment, sometimes it is a series of payments.

Non-Possessory Judgment – Debt for the unpaid rent is granted to the landlord but payment of the rent is not tied to the tenants right to stay in that apartment. The judgment does not need to correspond with a warrant of eviction.

Consequences of a Money Judgment:

• Low credit and difficulty building it back.
• Income extensions on bank accounts can freeze an account.
• Garnished wages, often approx. 10% of gross income.
• Sheriff or Marshall fees added to the collection amount.
• Difficulty accessing future rental housing due to a judgment or poor credit, which may cause drawn-out stays in shelters or other homeless situations.
• Landlord refusal to renew the lease due to unpaid judgment (resulting in holdover).
• Landlord termination of month-to-month tenancy due to unpaid judgment (holdover).
• Tenants with debt experience cyclic evictions and are forced into substandard and unsafe housing.
• Tenants have significantly less capacity to purchase homes, frequently for the rest of their lives
• Money judgments exacerbate generational poverty, disproportionately amongst POC.
• Money judgments accrue interest at 9% and are valid for 20 years.
• Money judgments are treated as ‘less serious’ or ‘non emergency’ by Social Services agencies and less likely to be covered by a grant.

No landlord shall legally serve a notice to quit in retaliation for:

• a good faith complaint alleging a violation of the duty of repair, warranty of habitability, or any other law/regulation regarding a dwelling;
• a good faith legal action by filing a claim against a landlord; or
• an attempt at establishing a tenants association or union

The landlord’s attempt at retaliatory eviction is prohibited. There is also a “rebuttable presumption”, which means if a landlord attempts to remove a tenant within a year of the landlord’s taking action in retaliation, unless the landlord can prove otherwise, it is presumed that they are responding to one of the three retaliatory eviction prohibitions. The landlord is also prohibited from making substantial alterations to the terms of the tenancy as revenge for any action taken by the tenant, including: refusal to renew lease or tenancy, or to not offer a new lease. Note: If the tenant owes money, it will usually disprove a retaliation case.

Tenants who choose to withhold rent due to non-repairs would do so under RPL 235-b, based on a breach of warranty and habitability. The landlord retains the right to sue the tenant for nonpayment, in which case the tenant will answer that they are legally withholding.

If the landlord sues, the tenant should appear and inform the court of the habitability issue and can request the following, depending on relief sought:

1. “A stay of proceedings or action for rent upon failure to make repair”, RE: RPAPL 755
2. “An abatement of rent for violations of the warranty of habitability”, RE: RPL 253-b
3. “A request that the court require repairs to the premises where a landlord seeks the court terminate a tenancy”, RE: UCCA 203

(if the tenant chose to deduct the cost of repairs from the rent this would also fall under RPL 253-b)

These are the three general types of relief UTA has seen granted by the city of Albany civil court. The burden of proof is on the tenant to illustrate the conditional issues in the home and the landlord’s failure to provide habitable housing. Tenants should bring documentation from Code Enforcement indicating the breaches of warranty/habitability, as well as print outs of any photos.

It is important that tenants withholding put the rental funds in an escrow account. It is also important to notify the landlord that rent is being withheld until noted code violations are resolved. Otherwise, the tenant can expect to find themselves in court for non-payment. If the tenant does not have the necessary funds to stop a non-payment eviction, they may be evicted.

Note: The court will often direct the tenant to deposit or tender payment of some or all of the rent before granting the relief. If the tenant only withholds a portion of rent, the payment required upfront may be less.

Abatement hearings usually result in amounts that are no more than 25% the cost for common code issues. If the violation is severe the tenant must demonstrate this. Once abatement is issued, the tenant usually has a week to pay the monies determined to be owed by the court. FAILURE TO PAY IN FULL tends to result in eviction. Payment in full should result in continued tenancy.

Small Claims can only relate to ‘Out of Pocket’ costs only (such as lost items, the value of security deposit, etc). No punitive damages (being pain/suffering) will be considered by the court.

If the tenant wins their case, they can recoup the filing fee. Court dates are usually 30 days out from the day filed. To file a small claim against a landlord, the tenant must sue the owner of the property where the owner lives or works at a physical address. The tenant cannot sue a PO box or an agent of the owner.

If a tenant does not know the landlord’s address, they can:

1. Look up the address on Albanylandlord.com. The address will be displayed under the landlord’s name.
2. The tenant can call their local tax assessor and ask about ownership information at the address they reside. They would then sue the entity that the tax assessor has on file.
3. If the tax assessor does not have an address on file, the tenant can call their local code enforcement department and ask if they have a physical address on file.

The form to file is simple and costs $15-20. Tenants can file for up to $5,000 per case.

Once in court, the judge gives parties the opportunity to settle in the hallway. If no agreement is reachable, the court will settle the trial usually on a separate date. Both sides give testimony, and then the judge decides the verdict.

Note: For any small claims case, tenants will want to appear for their case prepared with: three reasonable estimates for each item being claimed (may not be necessary to present but best to be prepared), any Code reports and photos, text messages, etc.

The most that can be requested as a security deposit is one month’s rent. If the landlord sells the property, the security deposit is supposed to go to the new owner. The landlord can retain all or some of the security deposit for: unpaid rent or utility bills, damage beyond normal wear and tear, moving and storage of tenants belongings; lost income due to a tenant breaking the lease and not finding a subleaser.

If the landlord does not return the Security Deposit:

For tenancies entered into prior to July 14, 2019, there is no real penalty that landlords face if they fail to return a security deposit for an illegitimate reason or no reason at all.

For Tenancy Expiration Predating 7/14/2019, returned deposit shall take place by a ‘reasonable time’ following the move out. Usually defined as 30 days. If an emergency results in the tenant needing to move out for their safety due to an Unsafe-Unfit designation, the landlord should return the deposit immediately. When vacating a unit, apartments should be left ‘broom clean’ by the tenant, and they should take photos of everything upon vacating.

For Tenancy Expiration After 7/14/2019, the landlord must offer the tenant the opportunity to inspect the apartment prior to move-in and execute a written agreement on the conditions of the property. Within 14 days of the tenant moving out the landlord shall provide the tenant with an itemized statement indicating the basis for deductions from the security deposit.
**If a landlord does not do this they have forfeited their right to retain any portion of the deposit. This means if the tenant sues the landlord for the deposit, the landlord must return it in full**

Any landlord who fails to complete these provisions will be subject to punitive damages of 2x the deposit. If the landlord sells the home it is their responsibility to transfer over the security deposits to the new owner within 5 days of the sale, or give the security deposits to the tenants to give to the new landlord.

When Disputes Arise

Legal action should be the last resort. It is best to solve disputes outside of a court. When this is not possible, security deposit disputes usually take place in Small Claims court. The tenant must sue the owner at the address where the owner lives or works. (See “Small Claims Court Process for information on receiving owner’s information). Some courts will only hear the beginning of the case if it is not resolved in the hall, and complete the case on a future date. Photographs of the apartment, videos of the space, written requests for repairs, witnesses, move-in/move-out checklists all help prove a tenant’s case. This must be printed out, as judges will not use cell phone photos or videos as evidence. If the landlord is claiming damages they should provide evidence too (usually pictures).

The burden is on the tenant to refute the landlord’s claims. It is up to the judge to decide whose case has the most merit and who is ordered to pay/return what.

Note: document, document, document, from the start to avoid such disputes from arising.

A lease is a contract. Even though some landlords will explain that parts of the lease can be ignored, it is important to make sure all changes are written and signed so that breaking the clause cannot be a circumstance for problems in the future. Some lease clauses are illegal in New York State and therefore void, even if you’ve signed off on them.

When a Lease Ends

If the lease is not immediately renewed and the tenant remains in the unit the landlord can file for eviction (“holdover”). If the landlord does not file in court and accepts next month’s rent, the tenant is considered to be on a ‘month to month’ basis with the same provisions of the former lease.

Breaking a lease

Three legal reasons for tenants in NYS to break a lease:

1. Domestic Violence (final order of protection brought against abuser and still in the same apartment, the victim can request from family court an order allowing the tenant to break the lease without penalty)
2. Military Service (due to active duty)
3. Senior Citizen (when certified by physician as no longer able to live independently, tenant must be above age of 62)

If a tenant breaks a lease for any other reason they should be prepared for:

• Being sued for remaining rent
• Judgment for unpaid rent until unit is re-rented
• Judgment may result in garnishment of wages and/or damage to tenant’s credit

If the unit is uninhabitable due to fire or other damages outside the tenant’s control, the tenant should be able to vacate without any lease issues. Notaly, a landlord is expected to attempt to recoup rental availability in the instance a tenant breaks a lease. If the landlord sits idly hoping to recover losses, the court may dismay a certain amount of months. However, if the landlord makes an effort to re-rent the unit and can demonstrate that good faith attempt, the landlord can sue the tenant for the months that rent was not received as well as the security deposit.

Month-to-Month Tenancy

Month to Month tenancy is the default for tenants without leases. Similarly, some landlords offer month to month leases. If there was a fixed-term lease that expired, but the landlord continued to collect rent, the tenant is held to the standards of the previous lease.

If a landlord intends to terminate a month to month tenants residency, there are difference timelines of eviction notices necessary:

• Occupancy for less than a year requires a 30 day notice
• More than a year but less than 2, 60 day notice
• More than two years, 90 day notice

Recurring Leases

Recurring leases are legal, but the landlord must notify the tenant 60 days prior to the automatic renewal.