Give Tenant Advance Notice Before Starting Eviction Proceeding

The Rent Stabilization Code (RSC) requires you to give advance notice to a rent-stabilized tenant before you can seek his eviction in most cases. The notice, known as a termination notice, informs the tenant that he must vacate or give up his apartment by a certain date.

The termination notice differs from the “three-day notice to pay rent or quit” or the “notice to cure.” The three-day notice to pay rent is used when the tenant doesn’t pay rent when it’s due. And the notice to cure is used when the owner wants to evict the tenant because the tenant has violated the lease. In this case, the owner must provide the tenant with two different types of notice—notice to cure and the notice of termination. The notice to cure is the first notice the owner needs to give the tenant who has violated the lease. This notice informs the tenant that the tenant has 10 days to correct the lease violation. If the tenant fixes the problem, the owner can’t take any further steps against the tenant. But if the tenant doesn’t correct the violation, the owner can then give the tenant a notice of termination.

It’s important for you to understand the rules on giving termination notices. The housing court will throw out your case if you haven’t given the tenant a proper termination notice, one that contains what the code requires and that’s been given to the tenant within the time frame set by the code.

When a Notice Is Required

You must give a termination notice to a rent-stabilized tenant in all evictions except those based on the tenant’s nonpayment of rent. You don’t have to give a termination notice if the eviction is based on nonpayment. You do have to give a termination notice if the eviction is based on any of these grounds:

Non-renewal. The tenant has failed to renew his lease after you’ve given him a proper renewal offer.

Owner occupancy. You seek to use the tenant’s apartment for your own use or a family member’s use.

Primary residence. The tenant fails to use his apartment as his primary residence.

Tenant’s wrongful acts. There are several grounds for eviction that fall under the category of wrongful acts:

• Violating a substantial obligation of the lease such as illegal subletting or having an illegal pet;
• Nuisance;
• Illegal occupancy for which you are subject to civil or criminal penalties;
• Using the apartment for illegal purposes such as prostitution or drug dealing; and
• Unreasonably denying you access to make needed repairs or improvements required by law or authorized by the DHCR, or to inspect or show the apartment to a prospective purchaser.

What’s Required in Notice

Pursuant to Rent Stabilization Code §2524.2(b), a termination notice must state:

• The ground for eviction;
• The date when the tenant must vacate or give up his apartment (you can start an eviction proceeding against the tenant only after the date set forth in the notice); and
• Facts to establish the existence of the claimed ground for eviction.

The code doesn’t specifically say how many facts are enough to establish your ground for eviction. But you should provide as many specific facts as possible. Otherwise, a housing court judge may claim that your notice lacks enough facts and dismiss your eviction proceeding. Also, a judge might bar your from introducing evidence at the eviction trial on any item not listed in the notice.

For example, if you seek to evict a noisy tenant for creating a nuisance, you could list the date and time of each instance of the tenant’s disturbing behavior in the notice and what the behavior consisted of. If neighbors have complained of the noise, you should state that in the notice as well.

Or, if you seek to evict a tenant for not using his apartment as his primary residence, you shouldn’t merely state that he’s a nonprimary resident. You should put in any facts that you have to support your claim, such as stating that the tenant hasn’t lived in the apartment for at least 183 days, his actual address is elsewhere (give the address if you can), his car is registered out of state, etc.

Given the uncertainty of the number of facts you must set forth in the termination notice, consult with your attorney about what you should put in the notice. Otherwise, you may omit some needed fact and end up having your eviction proceeding dismissed.

How Far in Advance to Give Notice

How far in advance you must give the tenant a termination notice varies depending on your ground for eviction. The RSC sets forth different timing requirements for each ground for eviction. The following grounds for eviction are accompanied by the timing requirements.

Refusal to renew (after owner gives proper renewal notice). The advance notice required is at least 15 days before the date set in the termination notice for the tenant to give up the apartment [RSC §2524.2(c)(1)].

Owner occupancy. When an owner seeks a tenant’s eviction so that the owner or a family member can move into the apartment, the advance notice required is not less than 90 nor more than 150 days before the end of the tenant’s lease [RSC §2524.2(c)(3)].

Nonprimary residence. For tenants who aren’t using their apartment as their primary residence, the advance notice required is not less than 90 nor more than 150 days before the end of the tenant’s lease [RSC §2524.4(c)].

Tenant’s wrongful acts. Assuming the notice to cure requirements were followed, the grounds for eviction under this category require at least seven days before the date set in the termination notice for the tenant to give up the apartment [RSC §2524.2(c)(2)].

Be sure to check your tenant’s lease before you send a termination notice. If the lease sets a shorter advance notice than the code requires for a particular ground for eviction, then the longer advance notice set out in the code applies. If the lease sets a longer advance notice than the code, however, then the longer time frame in the lease applies.