A black letter rule of New York law prohibits awarding the landlord a money judgment for unpaid rents unless the tenant was personally served with the eviction papers (notice of petition and petition).

Service may be made in one of three ways:

(1) personal service (directly on the tenant);

(2) substituted service (directly on some other person of suitable age and discretion residing or employed at the same address);

(3) conspicuous “nail and mail” service (affixing copies on a conspicuous part of the property).  Methods 2 and 3 also require mailing.

The Niagara County, New York Court ruled that courts have the power to enter a money judgment against a tenant who defaults after receiving a petition and notice of petition by substituted or conspicuous, rather than personal, service if:

(1) at least two reasonable attempts were made to serve the tenant before resorting to these methods of service; and (2) Within one business day after such alternative service, a copy of the eviction papers was mailed to the tenant both by registered or certified mail and by regular first class mail.

Furthermore, in order to obtain a money judgment for attorneys’ fees and other incidental expenses (e.g. late fees) beyond traditional rent owed, the lease must identify these damages as “additional rent.

If you are a NY landlord and have legal issues that need to be addressed,  call 1-800-729-4571 to find out more about professional and affordable legal services offered by the Bob Friedman, a Buffalo Landlord Attorney.

Compensatory and punitive damages are an effective and highly publicized means of enforcing federal housing laws. Victims of housing discrimination can seek compensatory, as well as punitive damages.

Compensatory damages consist of special and general damages. Special damages include actual out-of-pocket expenses or losses, including actual expenses such as moving and storage expenses and the losses that directly result from discriminatory practice such as having to move to more expensive alternate housing or inferior alternate housing.

Compensatory damages also include general damages for humiliation, embarrassment or emotional distress.

Courts award punitive damages if there is a reckless disregard for another’s rights. The following factors are considered in determining the amount of damages:

• The egregiousness of the conduct.
• The frequency of discrimination, i.e. whether it was a single, isolated incident or part of a continuing pattern of practice.
• The relative wealth of the owner.
• Whether the property owner participated in conciliation in an effort to settle the complaint.
• An amount sufficient to deter the property owner from continued violations of the civil rights laws.

Punitive damages were awarded against a landlord who evicted tenants for entertaining black guests because:

• The tenants had warned the landlord that his eviction attempt violated the Fair Housing Act.
• The landlord expressed animus by using racial epitaphs.
• The landlord had a history of racial discrimination.

If you are a Landlord with property in the Buffalo, New York area and need assistance with legal issues specific to property owners, see my Landlord legal page for more information

New York Tenants were served with a notice of termination for using the apartment for the illegal trade of the sale, storage, packaging or manufacturing of a controlled substance.

The notice contained a seven-point list of facts surrounding the arrest of the tenants inside the premises where they were in possession of marijuana. The tenants claimed that the eviction proceeding must be dismissed because the notice failed to lay-out the underpinnings of the illegal conduct complained of, rendering the notice vague, conclusory and defective.

The City of New York Civil Court, Richmond County held that the annexation of the following materials to the petition and the notice of termination gave clear notice of the events out of which the landlord’s grievance arose and served to allege adequately the elements of its cause of action: search warrant, arrest reports of the tenants, the Police Laboratory Controlled Substance Analysis Report indicating that marijuana was seized at the premises and the Police Report indicating that a scale and packaging materials were seized during the search and subsequent arrests.

The court held that the tenant’s participation or acquiescence in the use of the apartment for illegal drug sales may be inferred from the indicia of drug measurement, packaging and scales recovered in the search of the premises.

When a tenant dies in New York, landlords expose themselves to liability by granting unauthorized persons access to the apartment or by removing the deceased tenant’s property from the apartment.

Only a duly appointed executor (designated in the will), administrator (if there is no will) or Public Administrator (if there is no will and no known heirs) is permitted to enter the apartment and dispose of the decedent’s personal property. Children or other relatives of the tenant may not have authority to remove property from the apartment.

If an administrator or executor has not been appointed by the New York Surrogate’s Court and no one has taken possession of the apartment, the landlord can institute eviction proceedings three months from the date of death. The eviction notice of petition and petition must be served on:

• The surviving spouse, if any, otherwise on:
• A surviving child, if any, otherwise on:
• One of the other distributees (those who would inherit the estate if there
  were no will, i.e. grandchildren, parents, nieces or nephews).
• If there are no known heirs, contact the Public Administrator for guidance.

The estate is liable for the remaining balance of the lease term. If there is an unexpired lease, the executor, administrator or legal representative of a deceased tenant my request that the landlord consent to assignment of the lease or to subletting.

The request must be accompanied by the written consent of any co-tenant or guarantor of the lease and state the name, business and home address of the proposed assignee or sublessee. Within 10 days after the mailing of the request, the landlord may ask for additional information.

Within thirty days after the mailing of the request or the additional information requested by the landlord, (whichever is later) the landlord must send notice of his election to terminate the lease or to grant or refuse his consent.

The landlord’s failure to send such a notice will be deemed to be a consent to the proposed assignment or subletting. If the landlord consents, the estate of the deceased tenant and any other tenant still remain liable for the performance of the tenant’s obligations under the lease.

If the landlord terminates the lease or unreasonably refuses to consent, the lease shall be deemed terminated and the estate of the deceased tenant and any tenants thereunder are discharged from further liability as of the last day of the calendar month during which the landlord was required to exercise his option.

If the landlord reasonably refuses to consent, the lease shall continue in full force and effect subject to the executor’s right to make further requests for consent. All requests, notices or communications must be sent by registered or certified mail.

If there are damages to the apartment and unpaid rent, the landlord should file a proof of claim in Surrogate’s Court and serve it on the executor or administrator within seven months of when he is appointed by the court.

A New York tenant who intended to operate a store for the sale of pornographic materials has an affirmative duty to disclose that fact to the landlord, because such a store may have an adverse impact on neighboring properties.

When the tenant responded to the landlord’s ad for a vacant store for rent, he stated that he planned to sell videos.  However, he did not disclose that he planned to sell adult magazines and videos and to operate video booths showing pornographic films.

When the landlord’s contractor was remodeling the store to suit the tenants purposes, he discovered the tenant’s plans and informed the landlord.  The landlord changed the locks and sued the tenant to rescind the contract and recover the damages.

The New York Supreme Court, Duchess County awarded judgment to the landlord holding that he was entitled to rescind the contract on the grounds of fraud.  The court found that the tenant’s representation to the landlord that he would be selling videos and magazines, without specifying their type and his affirmative answer to the landlord’s question as to whether tenant’s business was like another business that sold children’s videos, constituted fraud.

If you are a property owner in NY and need the assistance of a New York Landlord – Tenant Attorney, please give me offices a call for a free, no-obligation consultation at 716 542 5444 or toll-free at 800 729 4571.

Buffalo City Ordinance Chapter 264, Licensing of Rental Housing Business, requires the registration of non-owner occupied one and two-family rental dwellings.

Q: What is the Buffalo Rental Registry?
A: The Buffalo Rental Registry consists of a database of relevant information regarding all non-owner occupied one and two-family rental dwellings in the City of Buffalo, including the name and address of the owners and telephone numbers where the owner or the owner’s agent can be reached at all times.

Q: Why is a Buffalo Registry necessary?
A: An improvement in safety and habitability for Buffalo rental housing is the governing purpose of the Registry. It provides the first citywide system for identifying rental housing, identifying safety issues in rental properties and lays a foundation for a system of code enforcement in rental properties.

Q: What are the benefits to Buffalo landlords?
A: 1) The protection of the character and stability of residential areas and preservation of the value of land and buildings throughout the City of Buffalo and 2) To require tenants to be accountable for issues such as respecting the occupancy limit and lawful use of the dwelling, maintaining sanitary conditions and keeping pets in an appropriate manner and under control.

Q: What are the fees?
A: The fees are $10 per year for single non-owner occupied dwellings and $20 per year for two-family dwellings. The initial inspection and the first re-inspection are free. Any and all subsequent inspections to assure compliance cost $75.00 per inspection.

Q: When are the fees due?
A: The Buffalo Rental Registry year is January 1st to December 31st. Registration is renewable annually. Bills are sent in January and are due within 30 days. Payment can be made in person or by mail, or you may also register and pay online by visiting www.city-buffalo.com and following the Rental Registry link.

Q: Are the certificates transferable?
A: Yes. Buffalo registration certificates are valid for one year and are transferable to any person who has acquired ownership of a registered building for the unexpired portion of the one-year term for which it was issued, provided that an application to transfer such certificate is filed with the Commissioner within 30 days of the title transfer.

Q: What if I fail to register my Buffalo property?
A: If application and payment are not received within 30 days, fees will be doubled. Failure to comply is punishable by a penalty of not more than $1,500 or by imprisonment for not more than 15 days, or by both for each offense. Failure to register will also automatically trigger an inspection and will result in issuance of an Order to Vacate the occupants of the dwelling.

Q: What else will trigger an inspection of Buffalo property?
A: Any of the following will also result in an inspection being performed:
a) Complaint received ;
b) The registration certificate being revoked ;
c) The property has been found to be abandoned ;
d) The property owner has unpaid taxes or user fees; or
e) The property has excessive exterior violations.

If you are considering buying rental property, you must avoid these costly mistakes:

#1 Bad Location
The property should be in an area where the demand for rental housing exceeds the supply and there is access to public transportation, churches, schools and stores. This will ensure good rents and resale price.

#2 Failure to check utility costs
Under the New York Truth-in-Heating Law, sellers and landlords of residential buildings, including one and two-family residences, condominiums, cooperatives and apartments, must provide prospective buyers and tenants with a summary or a copy of heating and/or cooling bills for the preceding two years and a statement of the type and location of insulation installed by the owner and previous owners. Determine whether the utilities are separately metered.

#3 Zoning or building code violations
Determine whether the building and planned renovations conform to zoning ordinances, building codes, deed restrictions and loan requirements of the bank, VA or FHA. Also, inquire as to whether a certificate of occupancy is necessary.

#4 Assuming personal property stays with the real estate
The contract of sale should state what appliances, equipment, furnishings and other personal property are included with the sale.

#5 Defective or dangerous property
The contract of sale should contain a clause that the sale is contingent on a inspection by a professional inspector, licensed engineer or licensed architect. Ascertain whether the property contains lead paint, asbestos, mold or other hazardous materials.

#6 Assuming that there are no leases
The seller should be required to furnish copies of all leases, tenant applications and move-in/move-out checklists prior to closing. Since the purchaser will be bound by any leases between the seller and his or her tenants, the purchaser should study the terms of the lease very carefully for such items as the expiration date, rental amount, tenant’s right to sublet and whether the lease is renewable. If there are no leases, the contract should specify whether or not the units must be vacant at the time of closing, assurances that the seller will not enter into any new leases, the amounts of security or cleaning deposits, the names of the tenants and the monthly rent amounts.

#7 Expecting to close on the “closing date”.
The closing date stated in the contract is merely a target date, unless it is specified that “time is of the essence”.