There are only three ways to deliver or “serve” a notice of petition and petition in nonpayment and holdover cases. The notice of termination and the notice to quit usually have to be served in one of these three ways also.
Three Ways Your Landlord Can Serve You a Notice of Petition and a Petition:
1. Personal Delivery: One copy of the notice of petition and petition may be given to you personally. If they are given to you personally, no other copies have to be served on you.
2. Substituted Service: This kind of service takes two separate steps and must result in your being served with three copies of the notice of petition and petition. One copy must be given to a person of “suitable age and discretion” who lives or works at your home, not just someone who happens to be there (This person does not have to be an adult, but it should not be a small child). By the next day, excluding weekends and certain holidays, the two other copies must be mailed to you, one copy by regular and one copy by registered or certified mail. Certified mail does not require a return receipt, but you will probably have to sign for it.
3. Conspicuous Place Service (often called “Nail and Mail Service”): This kind of service also takes two separate steps and must result in your being served with three copies of the notice of petition and petition. The person serving the notice of petition and petition must come to your apartment at least two times to try to give those papers to you personally or to someone who lives or works at your home. Those two attempts must be at different times of the day, usually once during working hours and once during nonworking hours. After those two attempts, the person serving the notice of petition and petition can attach one copy to your door or place it under your door. By the next day, excluding weekends and certain holidays, the two other copies must be mailed to you, one copy by regular mail and one copy by registered or certified mail. Certified mail does not require a return receipt, but you will probably have to sign for it.
What Do I Do if I Was Not “Served” Properly?
1. When you answer, tell the Clerk or the Judge if the landlord did not follow one of the three proper ways to serve you with the legal papers described above.
2. If you were not served properly and do not raise that defense in your answer you may be deemed to have waived that defense. If you do raise improper service as a defense, the Judge may decide to set a date for a hearing, called a “traverse” hearing, to decide whether the service of the court papers was proper.
3. At the traverse hearing, the landlord’s process server may be asked to tell under oath how the legal papers were served. You will have the right to ask the process server questions, to testify yourself, and to call witnesses to explain that the papers were not received in one of the ways described above.
4. If the Judge finds the service of the legal papers was not correct, the case will be dismissed. However, the landlord may start the case over again by giving you a new set of legal papers. If you receive a new set of legal papers, do not ignore these court papers. You must answer them as described above or you may be evicted from your home.
Things to Keep in Mind:
1. Every person named in the petition must be served his or her own set of legal papers.
2. If you receive a notice from the Post Office that the Post Office has registered or certified mail for you, go pick it up. The court will find that the landlord has properly served the notice of petition and petition even if you don’t pick up the letter with the papers from the Post Office (as long as the landlord has followed all of the other service requirements described above)
3. If you believe you were not properly served, you must bring it to the attention of the Court when you answer the case or when you first appear, whichever is sooner. If you appear in Court and fail to raise a defense of improper service, you may be prevented from raising it later in your case.