Familial Exception to Eviction

On October 22, 2014, in Landlord-Tenant, by John A. Weber IV, ESQ.
A very interesting decision was issued by Judge Eric Bjorneby, J.D.C. in Kakwani v Kakwani,40 Misc. 3d 627,967 N.Y.S.2d 827,2013 N.Y. Misc. LEXIS 2555,2013 NY Slip Op 23200,2013 WL 3155372(N.Y. Dist. Ct.2013).  This eviction action centered on the issue of whether a family member can be evicted in summary proceedings in New York.  A very detailed analysis which covered the development of the familial exception rule in New York was set forth.  The facts in these cases will determine whether the familial exception applies.  The only available option for evicting those covered under the exception is through ejectment actions.
As always, if you are in the unfortunate situation of being involved in an eviction action with a family member, please call The Law Firm of Vaughn & Weber, PLLC at (516) 858-2613 to speak with an experienced Landlord Tenant attorney today!

Eviction for Criminal Drug Activity

On April 29, 2014, in Criminal, Landlord-Tenant, by John A. Weber IV, ESQ.

Eviction of a tenant for criminal drug activity

A very interesting decision came down on April 11, 2014 regarding the eviction of a tenant for criminal drug activity.  The Appellate Term ruled that in order to evict a tenant for criminal drug activity, the tenant’s possession of illegal drugs is not enough.  The landlord must also be able to prove the tenant’s intent was to use the drugs in a criminal manner.  The crime of possession is not insufficient for this purpose, Los Tres Unidos Associates, LP v. Angel Mercado, “John Doe” and/or “Jane Doe” 2014 WL 1408540.

This is important for landlords to understand.  A distinction must be made between the landlord’s knowledge of a tenant’s possession drugs and a tenant selling drugs or using drugs in a manner that is considered a criminal drug activity.  This may save a landlord the time and money for bringing a Holdover Proceeding that cannot succeed.  If you insist on moving forward with such a Holdover Proceeding, be ready to prove the tenant’s intent to engage in criminal activity with regards to the drugs.

As always, if you have questions about evicting a tenant, call (516) 858-2620 to speak to a landlord tenant attorney that can assist you!

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Does landlord have a duty to mitigate damages if tenant breaches lease?

If you are a landlord in New York, you may – or may not – be responsible for mitigating damages that result from a breach of the lease.

Generally, a non-breaching party to a contract has a duty to mitigate damages resulting from another party’s breach of contract. For example, imagine that a construction company enters into a contract to buy building materials from a manufacturer. If the manufacturer breaches the contract by failing to provide the building materials, the construction company will not be able to complete the building, and may not be paid for the project. Under traditional contract rules, the construction company has a duty to attempt to acquire the materials from another manufacturer. The construction company may not sue the manufacturer for all of the money it lost as a consequence of failing to complete the project unless it at least made an effort to replace the materials, by, for example, buying the materials from another manufacturer. Even if successful in replacing the materials, the construction company may sue the manufacturer for any additional costs it took on in search of those replacement materials.

Landlord tenant law sometimes imposes a similar duty upon a landlord in the event that a tenant breaches a lease by, for instance, moving out before the end of the lease term. Many jurisdictions would require a landlord in this position to at least attempt to rent the property to another tenant. If successful, the landlord will have avoided some of the financial losses that would have occurred had the property remained vacant until the end of the lease term. However, in other jurisdictions, no such duty is imposed upon landlords. In those cases, if a tenant breaches a lease by moving out, a landlord may wait until the end of the lease term, and then sue the tenant for the entire amount of rent still outstanding under the lease, without making any attempt to find a replacement tenant.

What kind of jurisdiction is New York? Surprisingly, it is both. Although most courts agree that commercial landlords have no duty to mitigate their damages (that is, they have no duty to find replacement tenants), there is much disagreement – and confusion – between the courts about whether residential landlords have such a duty. For the foreseeable future – that is, until a higher court takes an unambiguous position on this issue – case law in the different counties determines whether the duty applies to any given landlord.

If you are a landlord or tenant, and have any questions about how the law applies to your property or lease, please feel free to call (516) 858-2620 to speak with a Landlord Tenant Attorney.

 

*Contributions to the research and preparation for this blog were made by Jason Mays, J.D.(awaiting admission in NYS)

Familial Exception to Evictions

On December 8, 2011, in Landlord-Tenant, by John A. Weber IV, ESQ.

Familial Exception to Evictions

Familial Exception to Evictions

Although unfortunate, there are many situations where a person may wish to evict a family member from their property.  It seems that a very common misconception exists.  It seems that most people think that if the family member is over the age of 21, they can be evicted by simple summary proceedings.  This is not the case at all.  These special cases fall under what is known in New York as the Familial Exceptions to Evictions by Summary Proceedings.  This familial exception to evictions applies to designated types of relationships which have developed over time through case law.  If the type of relative that you are attempting to evict falls within these exceptions, the eviction process changes entirely.  It is important to be aware of the familial exception to evictions before an action is commenced to avoid unnecessary delays and costs.  As always, the best way to avoid these pitfalls is to consult with an attorney before proceeding.

Landlord Tenant Attorneys in Mineola

Please feel free to call the Law Firm of Vaughn, Weber & Prakope, PLLC at (516) 858-2620 to speak with a Landlord Tenant Attorney.

 

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