Ask Judge to Order Use & Occupancy Payment in Eviction Case

If you sue to evict a tenant in housing court for a reason other than nonpayment of rent (such as nonprimary residence), the law says you’re entitled to what’s known as “use and occupancy” (U & O). Getting U & O while your case is pending is critical, since eviction cases can drag on for a long time. And during this time you still must pay the expenses to run your building.

It’s up to you or your attorney to ask the judge to order the payment of U & O. Here are the rules concerning U & O and what you should do to improve your chances of getting it.

What Is U & O?

U & O is what the tenant pays while your eviction case is pending. You don’t call it “rent” since technically you’ve terminated the tenant’s lease and aren’t entitled to collect rent for a time when the lease is no longer in effect. But since the tenant is still living in the apartment, you can ask the tenant for U & O as compensation while your eviction case is pending. It’s usually set at the amount the tenant was paying in rent under the last lease.

When You Can Get U & O

There are two times when you can get U & O.

1. While case pending. State law requires a housing court judge to order the tenant to start depositing U & O with the court within five days after either of the following occurs (whichever comes first):

• The tenant asks for a second delay of the case; or
• It is 30 days after you and the tenant first appeared in court. If you ask for a delay, the 30 days won’t start to run until the delay date you’ve requested. The tenant must deposit the U & O that came due from the date you started the lawsuit until the court directed the deposit. The tenant must also deposit all U & O as it continues to come due during the lawsuit.

If the building has 12 or fewer units, the tenant must pay any undisputed U & O directly to you instead of depositing it with the court. The law says that if the tenant misses the initial deposit or payment of U & O as directed by the court, the court should dismiss all of the tenant’s defenses and counterclaims and issue a judgment in your favor. If the tenant misses a future deposit or payment, the court must order an immediate trial without granting the tenant any further delays. All these legal requirements are spelled out in Section 745(2) of the state’s Real Property Actions and Proceedings Laws (RPAPL).

2. When case is over. You can also ask the court to award you U & O when the case is over. Section 749(3) of the RPAPL says you can ask the court to award U & O due from the time you started the eviction case until the time you got your warrant of eviction.

However, it’s better to try to get the tenant to pay U & O while the case is pending. This way you can pay your expenses as they come due. Also, at the end of the case, it may be more difficult to get the money you’re owed from the tenant. If the case has dragged on for months, the tenant may no longer have the money to pay you.

Four Tips

Here are four tips on getting U & O while your eviction case is pending:

Tip #1: Try to get tenant to agree to pay U & O. Before asking the judge to award U & O, try asking the tenant (or the tenant’s attorney) to voluntarily agree to pay you U & O while the case is pending. Point out that if the tenant wins the case, he’ll remain a tenant and owe you rent for the months he has been in the apartment while the case was pending. If the tenant doesn’t have the money to pay you, she may end up winning the eviction case only to be evicted later for nonpayment of rent.

If the tenant agrees, he or she may ask you to agree to delay the case. You should then put this agreement in writing and get it approved by the judge.

Tip #2: Ask for U & O at first delay request. Even though the law requires the tenant to pay U & O at the second delay request, ask the judge to order U & O the first time the tenant asks for a delay, especially if the delay will be for more than 10 days. Some judges may grant U & O at this time.

Tip #3: If U & O granted when tenant asks for delay, ask that tenant begin paying U & O before delay date. Let’s say that on Oct. 2, 2017, the court grants the tenant’s request for a delay of the eviction case and asks you to come back on Oct. 31, 2017. Ask the court to direct the tenant to start paying U & O before Oct. 31. For example, ask the judge to direct the tenant to start paying U & O by Oct. 24. This way, if the tenant doesn’t start paying the U & O by Oct. 27, you can come back on the delay date of Oct. 31 and ask the court to dismiss the tenant’s defenses and counterclaims and issue a judgment in your favor. RPAPL Section 745(2) says that you’re entitled to this if the tenant misses an initial deposit or payment.

Tip #4: Ask for U & O when you ask judge to allow you to conduct pretrial questioning. In most eviction cases not involving nonpayment, you or your attorney need to conduct pretrial questioning (known legally as discovery) of the tenant to get more facts to prove your case. You need to ask the judge for permission to conduct discovery. This typically occurs the first time you appear before the judge. If you haven’t already gotten U & O ordered, ask for U & O when you ask the judge to allow you to conduct the pretrial questioning. The pretrial questioning is bound to delay the case, and you’ll want to get paid during this delay.

It shouldn’t matter that it’s the owner who requests the pretrial questioning. The tenant isn’t hurt by the delay and will owe you the money even if he wins the eviction case.