You Can’t Be Evicted Without Court Process
If your landlord puts you out without a court process, it’s called “self-help.” Self-help is a crime; for self-help you can sue your landlord in Housing Court for triple the costs you sustain. You can also sue in a different court for property losses and other damages.
For example, let’s say the landlord changes your locks so you can’t get into your apartment. If over the next few days you stay in a hotel, keep track of all your expenses. Save receipts for your room, meals, travel, phone and whatever else you pay for as a result of being locked out. At Housing Court, assert that your landlord used self-help to evict you. When you show proof of the expenses you incurred as a result, the court can award you judgment for this amount against your landlord. While it’s never a certainty, the Housing Court has the power to award you triple the amount of your total costs.
So don’t panic if your landlord tells you that you have to move out. Reply that only the court can order you to leave. Only the City Marshal or Sheriff has the legal right to take possession of your apartment without your permission, and can only do so by court order. As officers of the court, they’re required to give you written notice so that if you have grounds you can go to court and get an “order to show cause” to stop it. Usually, you’ll get at least six business days advance notice.
If You’ve Been Illegally Evicted, Call The Police
Examples of ways landlords are held to have illegally evicted tenants include locking them out of apartments, using threats or violence saying tenants must leave, cutting off essential services such as electricity, water or heat, removing their furniture and property, or taking the door off of their homes. If you’ve been illegally evicted, the first thing to do is call the police.
Sometimes the police try not to get involved if there’s a way they can avoid doing so, they won’t intervene, by saying “it’s not criminal, it’s a civil matter.” However, trespass to illegally evict you, and illegal eviction itself, are crimes. So it’s not just a civil matter.
Here’s what to say if they start off refusing to help you: “Officer, illegal eviction is a crime. Police Department Patrol Guide, procedure 117-11, requires the police to assist tenants in illegal evictions, which is why I’m calling. Please send a police officer to come to my apartment, and write up a police report.”
If you still do not get cooperation, ask for the name of the sergeant or supervisor in charge at the 911 call center, and speak with that person. If you still have difficulty, call your local precinct and repeat these steps. Write down the names and badge numbers of all police personnel you have contact with.
At other times, the police do exactly what they’re supposed to. McAdams Law has had both very good and very bad experiences with police helping tenants who’ve been illegally locked out.
Whether the police come to your apartment, or if you have to go to the precinct, get a police report substantiating the incident. This is important. Police procedures can also direct an officer to issue a summons to your landlord, requiring a court appearance; get a copy of that also. With a written record of your illegal eviction and other relevant documents, your attorney will have something to show in court. Your landlord may even be arrested.
As witnesses, neighbors can back up your story, and for police reports, the police can take statements from them. If you have to call the utilities to get services restored, explain the circumstances of illegal eviction, and find out what options are available.
Keep a log of everything that happens and a list of names, addresses and phone numbers of everyone you talk to, with the date and time of each conversation. Winning against your landlord requires evidence supporting your position.
In Housing Court, you’ll have to prove you actually live in your apartment to get back in. So make sure you keep your New York State Driver’s License or Identification Card up to date with your current address. Mail sent to you at that address is also evidence of residence, especially utility bills and rent invoices or receipts.
Have a copy of your lease and written documentation of any difficulties with your landlord available to show the police. As discussed elsewhere in this Report, it’s a good idea to keep copies of these documents in a safe place online and outside of your apartment, such as with a relative, friend or your attorney. Give the name (and contact information like the address and phone number) of your landlord, building superintendent and managing agent to the officers.
If you are already engaged in a legal action against your landlord and are illegally evicted, you won’t need to start a new proceeding; speak with your attorney about filing claims in the existing proceeding, including for contempt of court.
If you can’t gain re-entry to your apartment and have no place to stay, call the Emergency Assistance Unit at 1-800-994-6494 for temporary shelter, or look online for help. Please see the Resources section below for a link to the NYC Department of Homeless Services.
(On the other hand, if you’ve been evicted with legal court process and you attempt to break into your apartment, that makes you the criminal: you can be arrested and convicted of a crime.)
If you’ve been suddenly evicted for any reason, you are safest staying temporarily with a relative, friend or at a hotel, and hiring a Tenants lawyer to represent you. Maximum certainty as to your rights is only available through the courts, and with a court order, you have a legally guaranteed right to re-enter your home.
Especially if relations with your landlord are hostile, consider in advance what can happen, and make a plan to deal with any contingency. In a sudden emergency, if you’ve been evicted, there’s no guarantee you’ll be able to get back into your apartment right away, or possibly at all. Whatever you do, in any allegedly “illegal eviction,” your first call should be to the police.
If You’re Locked Out Or Get An Eviction Notice From A Marshal Without Warning, Go To Housing Court Immediately To Assert Your Rights
If you are properly prepared, going to court is always the safest approach to preserving your rights. Act quickly as soon as you know there’s a problem. If possible, start by calling an attorney but don’t delay going to court if you can’t reach one. Whatever you say or do may later be used against you; mistakes can work to your detriment.
You or your attorney can apply to the court for an “order to show cause,” based on an affidavit claiming you’ve been, or are in the process of being, wrongly evicted. (An affidavit is a written statement sworn or affirmed to be true; an order to show cause is an emergency Court Order. If you’re evicted without notice or you’ve received a Marshal’s notice of eviction, further action can be put on hold until the order to show cause is decided.)
If you don’t have an attorney, ask the Court Clerk how to proceed. On your affidavit and evidence that you live at the premises, the court will issue the order to show cause, which can require your landlord to appear and “show cause” why you should not be granted access to your home immediately, and then be restored to possession.
The order to show cause will specify what actions and proceedings are stopped until a court hearing, how it must be delivered to your landlord or the landlord’s lawyer, and give a quick return date to court. Sometimes it’s as soon as the following day if you’re there in the morning.
For example, if the court signs your order to show cause by 12:00 noon, it can require service on your landlord that afternoon, and require the landlord to come to court the very next day. If the landlord doesn’t show up in Court at the appointed day and time after proper notice, then by default the Court can restore you, or at least, award you the right to re-enter your apartment. If you make a strong enough case, the Court’s order to show cause may also give you the right to re-enter before the hearing.
Some City Marshals Offices seem not to give proper notices before evicting. Some landlords and their lawyers may also be at fault. Unfortunately, factors can combine to make a situation quite dangerous.
In one case McAdams Law got involved in, a tenant was evicted without receiving any warning, including a Marshal’s notice. A Court Order had required the landlord to make repairs but also gave a judgment against the tenant, requiring payment. The landlord did not complete the work, but orally gave the tenant an extension of time to pay. Then without notifying the tenant, the landlord used the judgment and evicted him. Although he was not a McAdams Law client before being evicted, the firm got him back into the apartment by showing the Court that he had been duped, and had all the money the landlord was entitled to.
To accommodate people who have different work schedules, Housing Court’s Clerk’s office stays open late on Thursday night.
Keep A Copy Of Your Lease And Related Documents Off Premises, In A Safe Place You Have Access To Any Time
If you’re illegally evicted, or lose access to your home for any reason, critical documents can help to secure your rights in court. You never want to be in a position where important papers are in your home, and you can’t get them because you’re locked out.
Make a point of keeping a copy of your lease, last tax return with your current address, and the last few phone and utility bills in a safe deposit box, with a relative or friend, with your attorney or accessible online. This is a good idea even if you don’t have problems with your landlord. What if there’s a flood or fire, and all your records are destroyed? If you keep these documents in a secure location, in any emergency, you’ll still be able to prove your identity and that you are the legal occupant at that address.