New York landlords, frustrated with Covid-19 eviction moratoriums, are taking the law into their own hands with unlawful lock-outs, utility shut-offs and other harassment of nonpaying tenants.
New York’s Housing Stability and Tenant Protection Act of 2019 created new protections for tenants, including RPAPL § 768 which makes it a Class A misdemeanor for a person to either evict an occupant without a warrant of eviction, or to fail to restore an occupant who was evicted without a warrant (RPAPL § 768).
In responding to an unlawful eviction complaint, the police need to determine:
- Is the complainant a person entitled to protections under the law?
- Who can be arrested for the unlawful eviction?
- Is the type of dwelling unit covered by the law?
- Did the owner’s actions violate the law?
1. Is the complainant a person entitled to protections under the law?
The police must determine if the occupant lawfully entered into the dwelling unit, and if so, whether the he or she has a lease or has been in occupancy for more than 30 days. The following individuals are protected from unlawful evictions:
- Any occupant who occupies a dwelling unit pursuant to a written or oral lease; and
- Any occupant who has lawfully occupied a dwelling unit for at least 30 days.
In New York City, any occupant who occupies a dwelling unit within a hotel subject to rent stabilization, who has resided in the dwelling unit for less than 30 days and has requested a lease pursuant to the provisions of the rent stabilization laws, is protected by the law.
To assess whether a complainant is protected by the law, the police must take the following into consideration.:
- How the occupant gained possession.
Lawful occupants are protected from unlawful evictions. Other than squatters or trespassers, almost all other occupants are considered lawful if the landlord, owner or other person authorized to allow them in (e.g. managing agent, tenant) gave them permission to enter the dwelling unit. Also, other lawful occupants (e.g. those who have been in occupancy for less than 30 days) may not be removed by force. These occupants can be removed only if the removal is not forcible and does not breach the peace. Once the occupant is removed without force, the occupant cannot be kept out with force or by means that would breach the peace. For example, a tenant changes the locks on a guest who has been in their apartment for only 10 days while the guest is out shopping. This removal is legal because it was neither forceful nor breached the peace. However, when the guest returns, it is illegal for the tenant to keep the guest out with force or by breaching the peace. Unlawful occupants of a dwelling unit, such as trespassers and squatters are not entitled to be restored to possession if evicted without a warrant. However, the landlord could be charged with a crime, such as assault.
- Whether occupation of the dwelling unit is pursuant to a written or oral lease.
Leases do not need to be in writing for an occupant to be protected under the law. Occupants with oral agreements to occupy premises for a month or longer are also protected by the law. Generally, people occupying a premise pursuant to an agreement will have proof of rent payments as evidence that an agreement exists, but text messages, emails or other communications referring to the agreement may also be sufficient.
- If the occupant has lawfully been in the dwelling unit for at least 30 days.
In addition to tenants who occupy their premises pursuant to a current lease, anyone who has lawfully occupied premises for 30 days is entitled to protection from unlawful eviction, including: tenants whose leases have expired, family members who have been in the dwelling unit for at least 30 days, and roommates or other licensees of tenants and occupants who have been in the dwelling unit for at least 30 days.
The following are examples of unlawful evictions:
- A tenant and her roommate have been living together in an apartment for 1 year. The tenant moves out of the apartment and leaves her roommate behind. Instead of evicting her in court, the landlord locks the roommate out of the apartment.
- The owner of a single-family home allows his nephew and nephew’s girlfriend to live in his basement. The basement does not have a kitchen or a separate entrance. After six months, the owner gets into a fight with his nephew and locks both the nephew and girlfriend out of the home.
- A tenant gets a roommate but doesn’t inform the landlord. The landlord tells the tenant that the tenant is not allowed to have a roommate. The landlord throws the roommate’s belongings into the street.
If the occupant’s lawful occupancy is disputed, the police will ask for the following proof: written lease, communications between the parties indicating an intent to create a rental agreement, proof of rent payments, utility bills; mail with the dwelling units address that is dated more than 30 days prior, and/or other documents that show that the occupant has been living in the dwelling unit.
2. Who can be arrested for an unlawful eviction?
Any person who intentionally violates, or assists in the violation of, any of the provisions of NY RPAPL 768 is guilty of a class A misdemeanor. The owners, landlords, and any of their agents (e.g. managing agent, friend) can be criminally charged if they engage in any of the activities considered an illegal eviction. In addition, tenants or other occupants who invite others, such as roommates, family members or guests to live with them, and then illegally remove them, could be arrested for an illegal eviction.
In certain situations, criminal liability may be excused when the person who is removing the occupant is doing so for his or her own safety. The police should assess whether domestic or intimate partner violence is involved and follow department protocol for such situations. For further information, see the New York State Office for the Prevention of Domestic Violence.
3. Is the type of dwelling covered by the law?
Most residential buildings are covered by the law. Section 4 of the Multiple Dwelling Law defines a dwelling as any building or structure, or portion thereof, which is occupied in whole, or in part, as the home, residence or sleeping place of one or more human beings. A dwelling unit is any portion of a dwelling and can include an apartment, a basement, a room or even a bed. In contrast, a commercial space would not be covered by RPAPL 768 unless it is being used as a residence. Hospitals, monasteries, and public institutions are not considered dwellings.
4. Did the owner’s actions violate the law?
An unlawful eviction can be affected by an act of force, stopping essential services or changing the locks. Refusing to restore an occupant after an unlawful eviction is also a criminal act. It is an unlawful eviction if a person evicts or attempts to evict a person by:
- Using or threatening the use of force;
- Interrupting or discontinuing essential services (e.g. heat, water, electricity);
- Removing the occupant’s possessions from the dwelling unit;
- Removing the door at the entrance to the dwelling unit;
- Removing, plugging or otherwise rendering the lock on the entrance door inoperable;
- Changing the lock on an entrance door without supplying the occupant with a key; or
Any other action which prevents or interferes with, or is intended to prevent or interfere with lawful occupancy and of the dwelling unit; or which induces the occupant to vacate may also be a violation of the law . For example:
- Repeatedly calling the occupant at all hours;
- Repeatedly banging on the doors;
- Shouting at the tenant; or
- Repeated demands to move out.
The owner of the dwelling unit is required to take all reasonable and necessary actions to restore an occupant who has been unlawfully evicted. In the alternative, the owner can provide the occupant with another habitable unit in the dwelling. For the owner to be criminally liable, the occupant must first request to be restored, or request another dwelling unit. The owner must comply if:
- The owner committed the unlawful eviction;
- The owner knew, or had reason to know, of the unlawful eviction; or
- The unlawful eviction occurred within seven days prior to the occupant’s request without regard to what the owner or its representative knew, or should have known.
Each violation of the law is a separate and distinct crime. For example, there would be three charges of unlawful eviction if an owner changes the locks of an apartment while threatening the occupant and then refusing to restore the occupant after the occupant requested to be readmitted to the apartment. Evictions that are pursuant to a warrant or a government order to vacate are considered lawful evictions.
Contact Robert Friedman, Attorney at (716)542-5444 if you have any questions about evictions.
