How to Evict Troublesome Tenants

Few things can cause headaches or lower the value of your building faster than a disruptive or destructive tenant. If you do nothing while a tenant harasses other tenants, you could run into trouble later on. If the tenant harms another building tenant, you may be brought into court to explain why you didn’t take any action to get rid of the troublesome tenant. Or other building tenants may start withholding rent, or move out, because of the tenant’s activities. Or if the tenant damages your building, you may be stuck with costly repairs.

When You Can Evict

Both the rent stabilization and rent control laws allow you to evict a tenant if you can prove that the tenant’s behavior fits the legal definition of a “nuisance.” To evict a tenant based on nuisance, you must show either:

1. Abusive tenant behavior. The tenant or a family member has engaged in a continuing pattern of harassment and abuse toward other tenants in the building, threatening their health or safety; or

2. Property damage. The tenant has intentionally or maliciously damaged the apartment or the building.

It’s important to know that evicting a tenant based on nuisance can be difficult. Some judges will work to find a way to allow the tenant to remain in the apartment. And even if you win your case, you may not be able to evict the tenant right away. A judge could give the tenant a chance to correct his behavior before issuing an eviction warrant. But if you take the right steps and are patient, you should be able to evict that tenant.

Avoid Pitfalls When Sending Required Notice

Before you can ask a court to evict a tenant based on nuisance, you must send the tenant a legal notice called a “notice of termination.” In it, you let the tenant know you’re planning on ending the lease and will start a lawsuit to evict him if he doesn’t move out by the date specified in your notice.

It pays to be careful when you send this notice. It can be tricky and if you handle it wrong, you could wind up losing your case. You may want to consult with your attorney before sending this notice.

When to send notice. You must send the termination notice to a rent-stabilized tenant at least seven days before you can start the lawsuit. (If your lease requires more notice, comply with your lease.) For a rent-controlled tenant, you must send the notice at least 10 days before you can start the lawsuit. Also, the Rent Control Law requires you to file an exact copy of the termination notice with its affidavit of service at the Division of Housing and Community Renewal within 48 hours after sending it to the rent-controlled tenant (not including Saturdays, Sundays, or holidays) [NYC Rent and Eviction Regulations, Section 2204.3(c)]. The courts have held the affidavit of service is to be filed at the District Rent Office located in the borough of the court proceeding. For proceedings in Manhattan, it is the DHCR’s position that service can be upon either the Lower or Upper Manhattan Rent Office. For proceedings in Staten Island, where the DHCR does not have a rent office, it is the DHCR’s position that the service can also be upon either of the Manhattan Rent Offices. The Queens, Bronx, and Brooklyn offices will be the place of service for proceedings in their respective boroughs.

What notice says. Your notice must say far more than that the tenant is a nuisance. It should describe all the tenant’s activities that create a nuisance. Put as much information as you can in the notice. If you include too little, a court will find your notice defective because it doesn’t give the tenant enough information to defend himself in the lawsuit.

In one case, an owner sued to evict rent-stabilized tenants for breaching their lease by making loud noises in public areas outside their apartment, and for failing to repair damages to the apartment and public areas. The tenants asked the court to dismiss the case. They said that the owner’s notices were insufficient to permit them to prepare a defense and were therefore defective under Rent Stabilization Code Section 2524.2(h). The court ruled for the tenants. The notice stated only a single date when the tenants were loud. While dates and times aren’t required in a cure notice or termination notice, the lack of such information in notices here rendered them insufficient. The notices also failed to explain how or when the tenants or their guests damaged public areas [USKI Properties, Inc. v. Machicote, November 2015].

In another case, the owner sued to evict a rent-stabilized tenant for creating a nuisance based on objectionable conduct. The tenant claimed the owner’s termination notice failed to state sufficient facts for the tenant to put up a defense. The court ruled against the tenant. The termination notice described various incidents involving the tenant’s household member, including a Jan. 21, 2015, incident where that occupant verbally and physically threatened building employees in connection with a motorcycle chained in the building lobby. An argument escalated, a crowd gathered, and gun shots were fired. Police arrested the household member. The owner alleged that the household member’s menacing and threatening behavior required the owner to relocate and reassign several employees who feared for their safety. A copy of the Criminal Complaint was attached to the termination notice. Whether the incidents described were sufficient to prove nuisance was a matter to be decided through pretrial questioning and trial [Mid Bronx HDFC v. Paulino, August 2015].

Check lease for other required notice. Your lease may require you to send an additional notice to the tenant, called a “notice to cure.” If so, you must send this notice, even though it’s not normally required in an eviction proceeding based on nuisance.

How to Prove Case

Here’s the type of proof you’ll need to win an eviction based on nuisance:

1. Testimony of other tenants. If your nuisance case rests on a tenant’s abusive behavior toward others, the testimony of other building tenants describing the tenant’s behavior is critical. If the other tenants are reluctant to get involved and unwilling to testify, it will be almost impossible to win your case. You must convince them that their testimony is essential to evicting the abusive tenant.

Here are some steps to take before the trial to get ready:

• Get tenant complaints in writing. As soon as a building tenant complains to you about another tenant’s behavior, have that tenant put the complaint in writing. This will help you prepare for the trial and buttress the tenant’s testimony at the trial.
• Ask tenants to keep a log. Ask each tenant who complains to keep a written log describing any incidents involving the abusive tenant. Have these tenants note the date and time of each incident. This will help them remember specific dates, times, and events when called on to testify in court.
• Keep your own log of tenant complaints. When tenants complain about a disruptive tenant, keep your own log of their complaints. That way, you’ll know which tenants to contact as witnesses if you take a disruptive tenant to court.

2. Testimony of building personnel. Your building employees can also testify about the tenant’s behavior. Employees who come in daily contact with the tenant (doormen, supers) can tell the court their personal observations of and experiences with the tenant’s behavior. Again, it helps if employees keep a written log in which they describe specific incidents involving the tenant.

3. Testimony of contractors or repairmen. If the tenant has damaged your property, you can have the contractor who fixed the problem testify about what repairs were needed and what caused the problem. You also should save copies of paid bills and canceled checks to submit to the court.

Types of Nuisance Behavior

Courts consider the following to be nuisance behavior:

Tenant’s continuous abusive behavior. To show that the tenant’s behavior is a legal nuisance, you must show that the tenant continuously harassed other building tenants, threatening their health or safety.

In one case, an owner showed that a tenant engaged, over a period of years, in a pattern of objectionable conduct at the building. This included repeated instances of verbally abusive and physically violent conduct toward the property manager. The tenant was convicted of second-degree harassment, and the property manager had a two-year order of protection against the tenant. The tenant’s behavior placed an intolerable burden on other tenants and the building staff [Peters v. Owens, June 2015].

In another case, an owner sued to evict a 79-year-old rent-controlled tenant for creating a nuisance. The owner claimed that the tenant harassed and interfered with the building super’s performance of his duties and made loud noises directed at disturbing her upstairs neighbors. The tenant was represented by an attorney and a guardian ad litem (GAL) and, without admitting any wrongdoing, signed a settlement agreement that put her on probation for 15 months. The owner returned to court more than once, claiming that the tenant had violated the agreement. Initially, the court gave the tenant a chance to seek counseling for help with her behavior.

But the tenant refused to get help and, after a hearing, the court ruled for the owner. The building super credibly testified that the tenant repeatedly called or rang his bell at all hours, threatened his family members, cursed at him, and made racial slurs. He said that the tenant carried a metal bar that he was afraid she would injure someone with. The tenant made repeated claims that her apartment door locks were damaged, but they were always found to be working. The tenant also complained about sound waves from the apartment above hers. Upstairs neighbors credibly testified that the tenant repeatedly yelled and cursed at them, banged on the ceiling, and called the police during the night falsely claiming that there were disturbances occurring in the upstairs apartment. They eventually broke their lease and moved out because of the tenant. Videotape evidence showed the tenant damaging the door of the upstairs apartment with a metal bar. The tenant also left repeated, harassing voicemail messages for the building’s managing agent.

In addition to harassing the super, managing agent, and upstairs tenants, the tenant’s repeated frivolous 911 calls to the police and fire department placed the entire community and neighborhood at risk since she was taking first responders’ time away from other real emergencies. The owner could proceed with eviction [122 D Broadway, LLC v. Weinberg, March 2015].

Family member’s abusive behavior. If you can show that the behavior of a tenant’s family member threatens the safety of other tenants on a continuous basis, you can evict the tenant.

In one case, a judge found that a rent-stabilized tenant could be evicted for her son’s illegal drug activity at the apartment. At trial, a narcotics detective testified that the police searched the three-bedroom apartment with a warrant in 2013 and found in the open 240 packages of crack cocaine, other drug paraphernalia, two packages of heroin, and a measuring scale. The detective stated that, in her opinion, the drugs were arranged for sale and that there was too much for personal use. The tenant’s son also later pled guilty to criminal possession of narcotics with intent to sell. The tenant testified that, although her son lived with her, she wasn’t involved with the drugs, never used them, and never saw them in the apartment.

The court ruled for the owner. Given the amount of drugs found and the son’s conviction, the owner proved that the apartment was used to facilitate trade in drugs and that the tenant knew or should have known of her son’s activities and acquiesced. The drugs and paraphernalia were found in the half bathroom, second bedroom, and closet of the third bedroom, which was the tenant’s room. The police also had searched the apartment on prior occasions looking for drugs [WHGA Renaissance Apts. LP v. Jackson, September 2014].

In another case, the court found that the tenant’s teenage children engaged in antisocial behavior. The owner sued to evict the tenant for nuisance. The court ruled for the owner, and the tenant appealed. The appeals court ruled against the tenant. The court found the tenant didn’t take any steps to stop the continual antisocial behavior of her two teenage children. The owner showed that they repeatedly vandalized the building’s front entrance door and elevator, urinated and smoked marijuana in the hallways, verbally abused other tenants, and assaulted building staff. Their behavior substantially threatened the comfort and safety of others in the building [Acorn Realty, L.L.C. v. Torres, October 1996].

Abusive or destructive behavior of tenant’s visitors. In some circumstances, you can evict a tenant if you can show that the tenant’s visitors threaten the safety of other tenants. In one case, an owner sued to evict a rent-stabilized tenant for creating a nuisance. The owner claimed that the tenant had permitted up to 15 people to live in the apartment, causing physical destruction of the premises and the issuance of many violations. The owner and tenant signed a settlement agreement that put the tenant on probation for 15 months. The tenant agreed not to engage in or permit the complained-of conduct. The owner later went back to court, claiming that the tenant had breached the agreement. The court ruled against the owner after a hearing.

The owner appealed and won. The owner’s surveillance videotape showed that one night many people went in and out of tenant’s apartment while she was home. An altercation broke out among several of tenant’s guests in the hallway outside the tenant’s apartment. It then moved downstairs and one of the guests shattered the glass of the building’s entrance door. Another guest repeatedly kicked the bottom glass pane and banged on that door. The appeals court found that the tenant materially breached the settlement agreement by failing to take any meaningful steps to curtail the recurrent destructive and antisocial behavior of her roommates and/or guests. Therefore, the owner could evict the tenant [289 & 305 Associates v. Mohan, April 2016].

In another case, the owner sued to evict a tenant, claiming that the tenant and his guests created a nuisance in the apartment and the building’s common areas. The court ruled for the owner after a trial. The owner presented testimony showing that the tenant and his unauthorized guests engaged in a continuous course of antisocial conduct, including repeated incidents of fighting and noise within the apartment. The tenant also threatened other residents and their children. Police had been called to the building based on the tenant’s conduct on various occasions. Another tenant reported that a gun shot was fired from the tenant’s window and a shell casing was afterward found nearby. The court found that the tenant’s behavior presented a threat to the safety and comfort of other tenants [Stratford, LP v. Ventura, March 2016].