How do I properly evict a tenant in NY given these conditions? I offered a tenant a place to live, gave her the first month free, and started the lease the 2nd month. In the lease she agreed to switch the utilities into her name. She never paid rent and never turned the utilities into her name. When I started the eviction process she retaliated by calling the cops and making up false police reports against me. At the time I rented the apartment I did not realize I needed a Certificate of Occupancy so I didn't have one. What is the process for evicting this tenant?
You understand the business of landlording before you get started. You don't landlord for the purpose of evicting someone. You landlord for the purpose of exchanging keys for a duration for money, specifically by creating a leasehold estate that you sell to your tenant. Your tenant has the leasehold, you don't have the money, in part because it sounds like you didn't collect any before you handed over the keys or confirm your tenants' ability and history of paying. You now want to nullify the leasehold. In general this is the eviction you ask about. You are now reliant on a court in your jurisdiction to enforce the contract law with respect to the lease language and prevailing local ordinances. I cannot speak specifically to NY courts but they have a reputation as tenant friendly so you need to demonstrate your professional approach and locally required paperwork such as a certificate of occupancy, business license, etc. All lined up to make it easy for a judge to agree with you. You have an uphill battle. Turning off utilities (as mentioned in another post of yours) is not a professional move and will bias many judges against you. No certificate of occupancy may mean your original lease contract created a leasehold contrary to a public policy of NY which could put a judge in a bind if they found your case compelling. If a competent lawyer would cost $15k then it sounds like it might be cheapest to offer the tenant a couple thousand for the keys and a signed release to walk away&ndash;spend a couple hundred on the lawyer for this. Do not give them the money until they are out and give you the keys. This is called cash for keys.
Often, evictions are bifurcated. An initial hearing determines all evidence necessary to determine if there is a default existing sufficient to justify an eviction, and if so, the eviction goes forward immediately despite the fact that not all issues in the case have been resolved. A later hearing resolved the precise dollar amount of any damages claim. If the grounds for eviction is non-payment of rent, and the amount of payments or the amount of obligations of the landlord that can be setoff against the rent due exceeds the amount of rent found to have not be paid, then it is a defense to an eviction in the initial possession phase. If the counterclaim is smaller than the amount of rent owed (or cannot for some reason be set off against the amount owed) then it is only at most, a setoff against a damages award in favor of the landlord. I'm have not researched, in particular, how this is handled in New Jersey, but I am providing this answer on the theory that some insight is better than nothing. For the purpose of this question assume the landlord does not dispute the tenants underlying claim. His only argument is that the tenant should counter sue and that it should not be raised as a defense for non payment / stop the eviction. If this is true, it is both an affirmative defense to the eviction claim and a basis for a counterclaim in most cases. The better practice would be to raise it both ways in the same lawsuit. But, if the counterclaim is not sufficient to overcome the claim that rent is owed and not paid in full, or triggers some other different alternative ground for an eviction (e.g., maybe the lease provides that application of a security deposit against rent owed is itself an event of default), then that wouldn't prevent an eviction.
If you have an actual lease under which you reside at your parents' place, they must abide by the terms of that lease – presumably that sets the rent that you pay and states how long the lease is good for, Otherwise, if you're just living there, and have been living there for some time, then the courts may treat you as a month-to-month tenant. That means that they can end the tenancy with 30 days notice. Or, they can initiate an eviction proceeding. The less optimal outcome is that the court may treat you as a house guest, in which case no formal eviction proceeding is necessary. One way or the other, it is illegal to physically give a person the heave-ho from their residence, even if it is a family member. One recourse then is to hire an attorney to persuade your parents of at least that aspect of the law, if it is really in doubt. This gent addresses the matter for parents whose children have moved back home. He also mentions hiring a mediator, which could put the situation on a clearer legal ground. As for psychiatrists, anybody can see a psychiatrist; and anybody is free to hire a lawyer to try to force another person to see a psychiatrist. The prospects of getting a court order to force a child or a parent to see a psychiatrist because they are at loggerheads over some matter is extremely remote. The courts only force psychiatric treatment in extreme cases (e.g. threats of violence, actual delusions).
Any eviction order (for non-payment) will not be enforced by the sheriff (as ordered by the court), and that is how evictions would happen. This is also required under the governor's order of March 20. Foreclosure entails eviction – though the order prohibits the enforcement of an associated eviction order, and doesn't prohibit starting action against a property owner. Theoretically, you could file for eviction against your tenant and at some point the petition could be granted, and the sheriff would enforce it. Those are the current legal options. Current (optimistic) projections are that evictions could happen in the second half of May.
Break the lease. Leave early and advise the agent, "I am leaving early in breach of the lease, I have found person X (references and police check attached) who is ready, willing and able to sign a lease on the same terms and conditions for the balance of my term or longer. I freely acknowledge that this is a breach of the contract but, in the circumstances the landlord has suffered no damage; I am willing to settle any claim for breach of contract for $1."
You've signed a lease, which is legally binding, so you need to determine 1) what exactly was stated in the rental offer by the property manager and/or website about the available apartments, if a certain apartment was guaranteed, and if one could be substituted for another by the manager due to availability and other factors; and 2) you need to find out exactly what the lease says that you have signed, i.e. if there are terms that allow you to break the lease without penalty, such as misrepresentation by the landlord or property manager. If it turns out the manager did misrepresent the rental property, you may be able to break the lease. If the property manager stated at some point that the apartment represented by the photos may not be the actual property, you may be out of luck. Before confronting the property manager again, gather up all your emails, documents, photos and any other evidence - such as written descriptions of any phone calls and talks you had with the property manager before and after the move in - and talk to either a legal aid organization that specializes in rental aid (Google for your area in CO), or a lawyer who deals in leases and offers free initial consultations. Other than that, this site is not for specific legal advice, i.e. if you should sue the landlord to break the lease and move; that's your judgement and the advice of any legal representation.
It is legally significant because you have certain protections from eviction is you reside in a place. If you are just a weekend guest (or an uninvited intruder), you don't enjoy tenant privileges and could be arrested by the police for trespassing. Whereas if you have been living in a house for some months, then removing you from your residences is typically a more involved legal procedure. Receiving mail at an address over a period of time is evidence that you reside there.
Can the renter declare the contract to be void because of the death of the only other party to the contract? No. The estate of the decedent steps into the shoes of the decedent and the executor of the decedent's estate can enforce the lease. What if one of the heirs comes to the renter and tries to add additional conditions? The heirs do not have the authority to modify the lease without the tenant's consent, although the tenant knows that the lease may be less likely to be renewed if the tenant does not consent. Also, the heirs, strictly speaking, don't have the authority to do anything. Only an executor duly appointed by a court does.