Failure to Give Proper Eviction Notice Can Hurt Your Case

When a landlord starts an eviction proceeding, one of the very first steps you need to take is to give the tenant an eviction notice. Unfortunately, many landlords make mistakes when they provide notice. If the tenant identifies an error, the court will likely dismiss your claim — allowing a problem tenant to remain in your property. Before you file your next case in housing court, speak to an eviction attorney.

Types of Eviction Notices

A Notice to Cure informs a tenant that he or she is violating your lease’s terms. It must identify:

• Which lease terms the tenant is violating
• The amount of time the tenant has to cure the violation (such as removing pets)
• The consequences of failing to fix the violation before the deadline.

The length of time and the manner in which a tenant must cure a violation is written in most leases.

A Notice of Termination is another notice that must be served on the tenant before you start an eviction. A notice of termination for a rent-stabilized tenant must state:

• Your reason for removing the tenant from the property
• Facts and information supporting your grounds for removal
• The date the tenant must give up possession

You must be specific when you set out information in your Notice of Termination. If it is too vague and the tenant has insufficient information to identify potential defenses, the court will likely dismiss your eviction case.

Common Eviction Notice Mistakes

Landlords — even really good landlords — make mistakes. Below, we discuss common eviction notice errors we see in our landlord-tenant cases.

Lack of Specificity

The courts will dismiss a case if your eviction notice is too general. For example, in University Towers Associates v. Gibson, 18 Misc3d 349 (NY Civ. Ct. 2007), the landlord attempted to evict a tenant in a rent-stabilized apartment who owned a pit bull. The Notice of Termination argued that the pit bull was a nuisance, interfered with others’ comfort and safety, and was a dangerous animal. However, it did not state that the pit bull attacked or chased anyone, or that the tenant used the dog to threaten an attack.

Because the landlord didn’t give enough specific details, the court dismissed the eviction proceeding. In New York, simply possessing a pit bull does not qualify as a nuisance. (In fact, there are a lot of well-behaved, friendly pit bulls in the state.) Had the landlord given specific information about incidents where the dog threatened the safety of others (including dates and other details), the eviction might have been granted.

The Incorrect Signature on the Notice

If the wrong person signs the eviction notice, your case will be dismissed. Depending on who is sending the eviction notice, different requirements apply.

• Landlord: The landlord himself or herself must sign the notice
• Landlord’s agent: The agent must sign the notice and designate himself or herself as an agent of the landlord

If the eviction is signed by someone who is not designated as an agent or landlord, the courts will not accept the eviction notice.

Insufficient Time to Vacate

The amount of time given to allow the tenant to vacate the premises in the notice is also important. For instance, if the tenant lives in a rent-stabilized apartment and the landlord is alleging that the tenant is violating a substantial obligation of the tenancy, the landlord must give the tenant thirty (30) days’ notice before the surrender date.

If the landlord is alleging that the residence is not the tenant’s primary residence, the landlord should give a notice of nonrenewal at least ninety (90) days but no more than one hundred and twenty (120) days prior to the expiration of the current lease.  Additionally, a thirty (3) day notice to terminate should be provided prior to the expiration date in anticipation of commencing an eviction proceeding.

You Didn’t Demand Unpaid Rent

If you’re trying to evict a tenant because of unpaid rent, you must make a sufficient demand for rent — either orally or in writing. If the landlord chooses to serve a written demand, then it must clearly give notice of the alleged default in rent payments. Your written demand should include:

• Exactly which months of rent that are past due
• The amount owing for each month
• A good faith approximation (or estimate) of the total rent that is due.

If your demand lacks this information or is improperly served by a third-party, the court will deem your notice insufficient and likely dismiss your eviction petition.

Need Help With an Eviction Notice? Contact James G. Dibbini & Associates, P.C.

If you need help drafting or serving an eviction notice, contact the team at James G. Dibbini & Associates, P.C. We know the challenges that landlords face and are here to help. Our team of New York landlord-tenant attorneys provide honest and practical advice, craft detailed and legally binding leases and eviction notices, and guide our clients through housing disputes. Contact us for more information about our services.