When a tenant’s lease expires and they refuse to leave, or when a tenant has violated the lease and you want them out, you are looking at a holdover proceeding. In New York, a holdover proceeding is legally and procedurally distinct from a nonpayment case, and getting the steps wrong can result in dismissal, wasted time, and a tenant who stays in your property while you start all over.
What Is a Holdover Proceeding?
A holdover proceeding is a summary proceeding brought under RPAPL Article 7 to recover possession of real property from a person who is no longer legally entitled to occupy it. The legal basis for a holdover varies depending on the situation:
- The tenant’s lease has expired and they have not vacated
- The landlord has terminated a month-to-month tenancy and the tenant remains
- The tenant has materially violated the lease, such as illegal subletting, creating a nuisance, or unauthorized pets
- The tenant is a licensee or squatter without a valid lease
- A regulated tenant’s lease has been terminated for cause, such as non-primary residence or unauthorized subletting
Unlike a nonpayment proceeding, a tenant generally cannot cure a holdover by making a payment. The underlying basis for the holdover, expiration of the lease, a lease breach, or termination of tenancy, is what the court evaluates.
Step 1: Serve the Correct Predicate Notice
The predicate notice is the foundation of a holdover proceeding. Serving the wrong notice, or serving it improperly, is the most common reason holdover cases are dismissed. The type of notice required depends on the basis for the holdover and the nature of the tenancy.
Notice of Non-Renewal for Market-Rate Tenants
Under Real Property Law § 226-c, landlords must provide advance written notice of non-renewal based on tenancy length: 30 days for tenancies under one year, 60 days for tenancies of one to two years, and 90 days for tenancies over two years. Failure to provide the correct advance notice will result in dismissal of the holdover.
Notice to Cure for Lease Violations
If the basis for the holdover is a lease violation, such as unauthorized subletting or keeping a pet in a no-pet building, most leases require the landlord to first serve a Notice to Cure, giving the tenant an opportunity to correct the violation within a specified time period. If the tenant cures, the proceeding generally cannot go forward.
Termination Notices for Month-to-Month Tenancies
Under Real Property Law § 232-a, a landlord must serve a written 30-day notice of termination to end a month-to-month tenancy in New York City, and the notice must be served the required number of days before the next rent payment date. For tenancies longer than one or two years, the 60- and 90-day notice requirements under § 226-c apply.
Notices for Regulated Tenancies
Rent-stabilized and rent-controlled tenancies carry additional notice requirements and grounds for termination that must be carefully followed. Grounds include non-primary residence, illegal subletting, and chronic nonpayment, each with specific procedural requirements under the Rent Stabilization Code.
Step 2: Wait for the Predicate Notice Period to Expire
A holdover proceeding cannot be filed until the time period specified in the predicate notice has expired and the tenant has still not vacated. Filing too early, even by one day, can result in dismissal.
Step 3: File the Holdover Petition
After the predicate notice period expires, you may file a Notice of Petition and Petition in the Housing Court in the county where the property is located. The petition must identify the premises, the parties, the basis for the holdover, and attach or reference the predicate notice that was served.
Under RPAPL § 733, as amended by the HSTPA, the holdover petition must be made returnable 10 to 17 days after service on the tenant, giving the tenant time to respond before the court date.
Step 4: Proper Service of Court Papers
Service of the Notice of Petition and Petition must comply with RPAPL § 735. Service must be performed by a person over 18 who is not a party to the case, and must be done by personal delivery, substituted service, or conspicuous placement followed by mailing, commonly called nail and mail. An Affidavit of Service must be filed with the court. Defective service is a basis for dismissal at a traverse hearing.
Step 5: Court Date — Negotiation, Trial, or Default
On the return date, if the tenant appears, the court will attempt to facilitate settlement. Holdover proceedings can settle through a stipulation in which the tenant agrees to vacate by a specific date, often with a stay of execution, or through a negotiated resolution of the underlying lease dispute.
If the tenant defaults and fails to appear, the landlord can seek a default judgment and warrant of eviction. If the matter proceeds to trial, the landlord must prove the grounds for the holdover. Defenses frequently raised by tenants include improper service of predicate notices, succession rights in regulated apartments, and warranty of habitability counterclaims.
Step 6: Judgment and Warrant of Eviction
If the landlord prevails, the court issues a judgment of possession and, on application, a warrant of eviction authorizing a marshal or sheriff to remove the tenant. The warrant must be served at least 14 days before execution under RPAPL § 749.
Key Distinctions from Nonpayment Proceedings
- Holdovers require longer and more varied predicate notices; there is no single 14-day demand that applies to all cases
- Payment of rent does not typically resolve a holdover proceeding
- The grounds for the holdover must be proven; the case is about possession, not just money
- Regulated tenancies, including rent-stabilized and rent-controlled apartments, have additional procedural requirements
Mirzakanov Law handles holdover proceedings for landlords throughout New York City and Nassau County. If a tenant is refusing to leave, call (212) 400-9285 for a free consultation. We can assess your notice, advise on strategy, and represent you in Housing Court. Consultations in English, Hebrew, and Russian.