A holdover case is brought by a landlord to evict a tenant or the person in the apartment for reasons other than simple nonpayment of rent.
A holdover case is much more complicated than a nonpayment case. The information given below is very general and there can be a number of differences in individual cases. Therefore, the help of a lawyer is especially important in holdover cases.
The landlord is usually, but not always, required to give you a written “notice to cure.” This notice will tell you how the landlord thinks you are breaking the lease or acting in a way that is not appropriate for a tenant. It gives you a chance to correct the problem before the landlord starts a holdover. Before court papers are delivered to you, the landlord must, in almost all cases, also give you a written “notice of termination.” If you have received a notice to cure, you will likely receive the notice of termination about 10 days later. This notice will give you detailsabout the landlord’s decision to terminate your tenancy. The notice must also tell you that you must be out of your apartment by a specific date or the landlord will take you to court to evict you. (Generally, this notice must be given to you in one of the ways described in Chapter 3, p. 7, “How Legal Papers Are Served “)
If the landlord was not required to give you a notice to cure or a notice of termination, you may simply receive a notice which tells you that you must be out of your apartment by a specific date (usually 10 days after the notice is delivered to you). This notice, sometimes called a “Notice to Quit,” explains why the landlord believes that you do not have any right to stay in the apartment – for example, that you are not a tenant. (Generally, this notice must be given to you in one of the ways described in Chapter 3, p. 7, “How Legal Papers Are Served “)
After the date listed in the notice of termination or notice to quit by which the landlord has notified you that he or she wants you out of the apartment, you must be given court papers called a “holdover petition” and “notice of petition” to bring with you to the court. (These papers must be delivered to you in one of the ways described in Chapter 3, p. 7, “How Legal Papers Are Served “)
The Court Clerk will mail you a postcard when the affidavit of service of the holdover notice of petition is filed. The postcard will have the date, time and courtroom (also referred to as “Part” with a letter of the alphabet after it) at which the holdover will be presented to the judge. The courtrooms or “Parts” are also called “Resolution Parts.” You must “Answer” the petition. An answer is your response and defense to the claims in the petition. You can answer the petition orally or in writing when you go to court on your court date or you can answer in writing before your court date.
What to Say in Your Answer to a Holdover Petition:
Below is a list of possible defenses. You may have a defense that is not listed here.
1. What the landlord claims you did or did not do is not true, or is not as serious as the landlord claims it is.
2. The notice to cure or notice of termination does not contain enough specific information to allow you to correct the problem or defend against the landlord’s case.
3. The notice to cure, notice of termination, notice to quit or holdover petition and notice of petition were not given to you properly. (See p. 7, Chapter 3, “How Legal Papers are Served”)
4. The landlord accepted rent from you after the date listed in the notice of termination and before you were served with the notice of petition and petition. This means that the landlord, by accepting your rent, may have renewed your tenancy and will have to restart the court case.
5. The landlord is suing to “get even” because you recently complained to a government agency about your housing conditions or joined a tenants’ association. This is called a “retaliatory eviction.
6. The notice to cure or notice of termination was not signed by the landlord or an authorized agent.
7. The petition does not set forth a cause of action.
8. Even though you did not have a lease in your name, you now have a right to a lease in your name because you are a family member of, or had a close family-like relationship with, the prior tenant and lived with that tenant before he or she left the apartment. These are known as succession rights.
9. The apartment you live in is an illegal apartment and is therefore not included in what is called a “multiple dwelling registration.” (See Glossary: Multiple Dwelling Registration )
You can also ask for a jury trial in your answer. (You can learn more about requesting a jury trial on p. 4, Section 2A,
“Nonpayment Cases “)
The holdover petition will tell you the court address, the courtroom number (usually referred to as “Part” with a letter of the alphabet after it), and the date and time you are scheduled to appear in Housing Court, usually within two weeks of the date you received the court papers. You must be in court on your court date and be on time. Failure to appear in court or to be present when the case is called could result in a “default judgment” against you. (See p. 9, Section 4B, “What to Do When Going to Court “)