Landlord vs. Tenant: City Eviction Wars
300,000 a year get eviction papers, and 25,000 are evicted

By Dennis Hevesi
New York Times, August 4, 1996

Michael Gregg, owner of a small apartment building on Manhattan's Lower East Side, was granted judgments of eviction against two adjacent tenants who got married and knocked down the wall between their apartments -- only to have the eviction held up on appeal because the apartment violates city codes.

"They called in the inspector and he cited me, as the owner, for not having a wall where there was supposed to be a wall," Mr. Gregg said.

For 44 years, Herbert Walker, an 81-year old disabled veteran, has lived in a rent-controlled apartment in the Bronx. After being served with an eviction notice, Mr. Walker reluctantly agreed to pay the rent he had held in escrow, even though the judge allowed him to subtract only $400 of the $3,200 he paid out of his own pocket because the landlord refused to repair crumbling ceilings that dropped plaster on his bed in the middle of the night.

"My wife and I live on a pension," Mr. Walker said. "I can't afford the cost of appealing this thing."

The two men represent two of the myriad faces of eviction. It is the direst of outcomes for a relationship inherently fraught with tension, the ages-old struggle between a landlord's right to a livelihood and a return on investment and a tenant's need for that essential resource -- affordable shelter.

So the fact that about 300,000 New York City tenants are served with eviction papers each year is, at once, both understandable and remarkable. That figure represents 4 percent of the city's population.

To be sure, only about 100,000 of those tenants are eventually ordered out of their homes. At that point, some grudgingly pay and stay; others leave on their own, and still others -- about 25,000 last year -- find themselves out on the street after the knock and lock of the city marshal. But even that 100,000 attests to the bitterness that can pervade the landlord-tenant relationship -- as it has since medieval monarchs first granted land rights to lords of the manor.

And so, weekday after weekday, before the bench and in the crammed, chaotic hallways of housing court, both parties play out angry dramas most chaotic hallways of housing court, both parties play out angry dramas most often settling, sometimes going to trial.

The kinds of disputes embroiling Mr. Gregg -- who is still awaiting the outcome of the appeal -- and Mr. Walker are grist for what tenant advocates have long contended is a mill that grinds out case after case in housing court (officially, the Landlord-Tenant Part of Civil Court), and that landlord representatives assert is a system bogged down as never before by frivolous appeals.

Most tenants facing eviction are poor and cannot afford a lawyer, while landlords almost always have legal representation, the tenant advocates say. But that, the landlords point out, is because state law requires corporations, which include most building owners, to have lawyers. That doesn't address the inequity, the tenant side says. And so the arguments go.

But with the current rental market feverish, particularly in Manhattan, tenants are feeling new eviction pressures, their advocates say not unlike the heat applied during the wholesale co- op conversions of the 80's. More and more, the advocates say, landlords are going to court not so much to get the back rent, but to get the tenant out. That way, the apartment becomes eligible for a vacancy allowance, as well as the regular lease- renewal increase, and moves closer to the coveted status of vacancy decontrol, with its freedom to charge what the market will bear.

"We're seeing more middle-income people than you would expect," said Angelita Anderson director of the City-Wide Task Force on Housing Court, a not-for-profit group that counsels tenants. Increasingly, Ms. Anderson said, long-term tenants who complained about conditions in their apartments have been served with eviction papers, with the landlord claiming they are harassing the staff.

"We have well-educated tenants coming to us saying,'I never thought I would be in this situation,'" she said.

Nonsense, say the landlords. Allegations leading to eviction have to be well founded. And after eviction, the owner usually loses all back rent -- months' and sometimes years' worth. That makes it harder to maintain the building properly, and, by narrowing the rent stream, cuts into property tax revenues. There ought to be a law requiring tenants to place withheld rent in escrow, landlord lobbyists insist.

Tenant leaders, the landlords say, are raising false alarms to generate support as the scheduled expiration of the rent- stabilization law next June offers state legislators the volatile possibility of ending, or at least modifying, rent regulation. "I think this is part of efforts by tenant advocates to enlarge their base" for the coming fight, said Joseph Strasburg, president of the Rent Stabilization Association, the city's largest landlord group.

The deepest roots of those kinds of conflicts can be found "way back in feudal times when the king would give a lord dominion over an area of land," said Andrew Scherer, author of "Landlord- Tenant Law in New York" (Lawyers Cooperative Publishing, 1995). At that time, a tenant could be thrown out without a court proceeding -- a practice obfuscated by the legal euphemism, "self-help eviction."

Through the centuries, however, as common law evolved, the principle developed that a landlord could not forcibly evict. "If your only option was force, you had to go to court," Mr. Scherer said. "And if you went; to court it was a long process."

Feudal vestiges found fertile ground in; America, and particularly in New York, with land grants to patroon families like the Van Renssellaers and the Livingstons sometimes encompassing two or three upstate counties. In the 1830's, rent wars began in the Catskills, with farmers clanging bells and swarming over the hills to confront the sheriff whenever he tried to evict a rent-reluctant neighbor.

Bending to the clamor of republicanism following the Revolution, state legislatures had already begun breaking up the patroons' vast holdings. And they enacted summary-proceedings statutes in which, in exchange for expedited hearings, landlords agreed to abide by court rulings and forgo the harsh practice of self-help eviction.

Currently, it is Article 7 of New York State's Real Property Actions and Proceedings Law that sets requirements for obtaining a court-ordered eyiction:

The landlord starts the process by serving the tenant with copies of a notice of petition and a petition that in combination are called the dispossess. But certain notices drafted by the landlord -- a kind of paper trail -- must be served on the tenant even before court proceedings start. They might include a notice to cure a lease violation, notice of intent not to renew a notice terminating tenancy and, of course, a demand for rent.

There are two basic types of eviction. By far the most common is the proceeding for nonpayment of rent. The other is called a holdover -- as in the tenant is holding over after the lease has expired

"Maybe there's been no agreement on a new lease," Mr. Scherer said, "or the landlord alleges that the lease has been broken because the tenant is running a business in the apartment, or keeping a pet in violation of the lease, or altering the apartment without permission." Other holdover allegations might be housing unauthorized occupants subletting without permission or objectionable conduct -- officially defined as creating a danger to the life, health or safety of other tenants or the landlord.

Another area is any illegal activity operating out of the apartment -- drug sales or prostitution. "You can't be evicted just because you've committed a crime, not even because you committed a crime in the apartment," Mr. Scherer said. "It has to be ongoing use of the apartment for an illegal activity. You could get arrested for drug possession in your apartment and unless it was with intent to sell it wouldn't be a basis for eviction."

There are also grounds for eviction not involving the tenant: the landlord's desire to personally use the apartment, or to withdraw it from the rental market. Another ground is the tenant's failure to maintain the apartment as his or her primary residence.

After the landlord drafts the dispossess and obtains a court index number the dispossess must be served on the tenant according to certain requirements.

There must be an attempt to serve directly to the tenant or someone at the premises "of suitable age and discretion" -- generally defined as someone 14 years or older and competent to give tbe papers to the actual tenant. The landlord is obliged to make a "reasonable application," meaning, Mr. Scherer said: "It's not satisfactory to come once during working hours, and say' 'I tried.' You have to come back at least another time before or after working hours And it can't be 3 A.M.; that would be harassing."

When the tenant or a "suitable" other person cannot be found, the dispossess can be placed on or under the door Copies must then be sent by regular and certified mail to the tenant, and an affidavit filed with the court.

With service complete, a tenant has five working days to respond in housing court, at which time, in a nonpayment case, a trial is scheduled 7 to 10 days later. In a holdover action, the dispossess already bears the court date, 5 to 12 days after service. A tenant who doesn't respond defaults and the court will grant a judgment of eviction, unless the landlord's petition is obviously defective.

Most cases are settled by a stipulation between the parties. Sometimes there will be a conference before the judge and, with input from the bench, a settlement reached. More often, settlements are reached in the hallway.

"Two or three cases out of 100 go to trial, and in those cases it's likely there are lawyers on both sides," Mr. Scherer said. "It's rare that unrepresented tenants go to trial.

If a judge finds for the landlord, the tenant usually has 10 days to pay or cure a violation to avoid eviction. If the tenant does not pay or cure, the landlord can contact a city marshal -- private entrepeneurs overseen by the Department of Investigation. "In a sense, they are like bounty hunters; they get paid per case," Mr. Scherer said.

The marshal will serve a notice saying that the tenant can be evicted any time after 72 hours, not counting, in New York City, weekends or holidays. At that point, a tenant may seek a stay: perhaps the tenant never received the dispossess; or the tenant may seek more time to move or to raise the rent.

If the tenant does not obtain a stay, the marshal's dreaded knock will echo, with the tenant and the furnishings removed from the premises. In New York City, unlike the rest of the state, the marshal is prohibited from leaving the property on the street; it must be stored in a warehouse. The marshal will then change the lock and post a notice saying where the property can be claimed.

The requirements for a landlord to obtain an eviction in New York, and particularly in an eviction in New York City, are generally considered more stringent than in other states. In most other parts of the country, a tenant who does not have a long- term lease can be evicted without cause. That is the case in Connecticut, for example with the exception only of disabled and elderly tenants living in buildings of five or more units. But in New York City, with its large stock of rent-regulated and government-subsidized apartments, most tenants cannot be evicted without cause, even after the termination of their lease.

New Jersey's laws are also considered quite stringent listing 21 justifications for an eviction, most of them similar to the stipulations in New York law.

In 1993 according to the New York State Office of Court Administration there were 311,326 dispossess petitions filed in the city. Of those, 92,273 resulted in a judgment for eviction. In 1994, there were 312,533 dispossess petitions filed, with 99,667 eviction judgments issued. And in 1995, when there were 287,705 dispossess filings, 94,709 judgments were issued.

But because, even after a judgment is issued settlements are often reached or a tenant obtains a show cause order delaying the process, or a tenant moves out on his or her own actual evictions by a marshal are less frequent. In 1993, according to Department of Investigation data, there were 21,937 evictions by marshals; in 1994 there were 23,970, and in 1995 there were 24,995.

There are statistical indications that tenant contentions about an increase in holdover proceedings have merit. Whether the numbers indicate a long-term trend or an anomaly remains to be seen.

As administrator of the city's Civil courts, State Supreme Court Justice Jacqueline W. Silbermann oversees housing court. "It differs in different boroughs," Justice Silbermann said of the holdover question. "New York County has always been the place where you find more holdovers; although, in Queens, you also have it because of three-family private homes where they rent an apartment."

"Absolutely, when the rental market is hot," the judge said, "that always creates additional desire by the landlords to have holdover petitions."

No data was available for the first half of 1996. But in 1993, 15,058, or 4.9 percent, of the eviction cases filed were holdovers. In 1994, holdovers increased to 17,975, or 5.8 percent of the proceedings. And in 1995, they went up to 20,641 holdovers or 7.2 percent.

The numbers are, of course, subject to the spectrum of personal perspective.

Kenneth Rosenfeld, a tenant representative on the Rent Guidelines Board, which sets renewal rates for the city's 1 million rent- stabilized apartments, said the trend toward holdover cases "shows me that landlords are seeking to recover possession of apartments in order to get higher rents from new tenants."

On top of a 5 percent increase for renewal of a one-year lease or a 7 percent increase for a two-year lease, he pointed out, the board approved a 9 percent allowance for vacant apartments that rent during the year beginning Oct. 1. "In addition," said Mr. Rosenfeld, who is also legal director for the Northern Manhattan Improvement Corporation, which provides free counsel for tenants in Washington Heights and Inwood, "landlords have the opportunity on vacancy to make improvements such as a new sink or a new toilet, which legally allow them to charge l/40th of the cost per month for those additions, forever. Even after the work is paid for, it becomes a permament part of the rent."

David Frazer, a lawyer with Smollens Guralnick and Frazer, which primarily represents tenants, concurred: "We have been seeing for the last year and a half, an increase in what I would call middle- income apartments involved in evictions -- those with rents in excess of $1,000."

Mr Frazer cited the case of a client, a bond trader on Wall Street, who was paying $1300 a month for a three-bedroom apartment on the Upper West Side.

"He was taken to court on a holdover proceeding alleging that he violated his lease by using the roof terrace next to his apartment like a patio," Mr. Frazer said pointing out that the lease contained no restriction against that use.

During negotiations, the landlord "made no secret of his desire to up the rent for my client's apartment," Mr. Frazer said and the case was eventually settled with the tenant agreeing to combine his apartment with an adjoining decontrolled unit for a total rent of $4,300. The agreement also said the tenant could use the roof terrace.

"It's a combination of the market tightening and vacancy decontrol," Mr. Frazer said of the increase in holdover proceedings. A vacant apartment with rent exceeding $2,000 is eligible for decontrol. "So if a stabilized apartment is renting for $1,000 or more, it's not too hard to do $36,000 in improvements -- renovating the kitchen and bathroom are classic examples -- and then you could have a deregulated apartment." On top of the standard renewal increase and the 9 percent vacancy allowance a $36,000 renovation would entitle the landlord to another $900 a month.

Ben Wizner, an advocate with the Urban Justice Center, which works to prevent homelessness, said the eviction situation has been exacerbated by cuts in the city's emergency rent grants. "A higher percentage of my caseload is what I call the fallen middle class," Mr. Wizner said, "people in their 40's or older who were downsized, city employees who accepted buyouts and have been unable to find other employment."

But Robert Goldstein of Borah, Goldstein, Altschuler and Schwartz, the largest landlord law firm in the city, called such scenarios "alarmist."

"There's no marked difference in holdover proceedings this year as opposed to last year," Mr. Goldstein said, except, perhaps, in co-ops or condominiums that have been rented by their owners.

"People who have rented their apartment" he said, "may be more likely to bring holdovers, because tenants know the court system doesn't function expeditiously. So if your co-op sublease is expiring, you know you can get to stay five, six months more just by forcing the owner to bring a holdover proceeding. Then you leave."

In assessing the eviction process, landlords and tenants caught up in the system usually have -- following a predictable pattern -- dissonant views.

Mr. Strasburg of the Rent Stabilization Association said a study commissioned by his organization showed that 40,000 tenants fail to pay a total of about $145 million in rent each year, "and at the end of the process, when the tenant finally gets evicted, there's no recourse for the owner to recoup all the rent lost during months of litigation."

"That not only hurts the small property owner," Mr. Strasburg said, "but it means less money being put back into the building for maintenance and repairs, less real property taxes to the city and, ultimately, a lot of abandoned buildings."

Howard Grun of Kaufman Friedman Plotnick and Grun, which primarily represents landlords, does not believe holdover proceedings are being abused in order to vacate apartments so that they can be rented at higher prices. "From personal experience " he said, "we have found our clients will commence the appropriate type of proceeding depending on the type of default that occurs."

Mr Grun, who is also a member of the Housing Court Committee of the Association of the Bar of the City of New York, said the issue of misusing holdover eviction proceedings "has not yet arisen" before the committee, "but it's certainly one we'd be interested in pursuing."

But tenant leaders, citing the possibility that rent regulation will be significantly modified next June, insist the eviction squeeze now is real. "Landlords are licking their lips over the possibility that if rent regulation isn't completely eliminated, then the Legislature will at least give them vacancy deregulation," said Mr. Rosenfeld, the tenant representative on the Rent Guidelines Board, "which means that a landlord can charge anything he wants for a vacant apartment."

Copyright 1996 The New York Times Company