New York State Laws on Commercial Property Eviction Procedures

By Margaret E. Juliano - Updated August 15, 2018
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Commercial tenants may feel stuck or scared when faced with a landlord threatening eviction, but there are a variety of ways those tenants can respond to such threats. Arming yourself with information about the process of commercial eviction and how to respond may help lessen the anxiety of facing those threats.

Tip

A landlord must follow a specific process to evict a tenant. That process requires a demand for rent, a petition, notice of the proceeding and service of the proceeding. Tenants can dispute the eviction, ask for more time, or ask the court to stay the eviction.

A commercial lease may be structured differently in how the tenant pays, but otherwise the lease may be very similar to a residential property one. A commercial property is one that is used only or primarily for commercial or business purposes. In other words, no one lives there. But for the purposes of discussing a commercial lease and tenant’s rights, the process of eviction is the same. The difference is that a commercial tenant’s rights in New York may be stronger than a residential tenant's because the commercial tenant has more defenses to why they didn’t pay the rent.

What Is the Process of Eviction?

In any eviction proceeding in New York State, a landlord must show that the tenant failed to pay the rent within the time given by the lease or other agreement. The landlord must also show that the tenant failed to leave the property after being asked. This is called vacating the property.

The most common reason a landlord would move to evict a tenant is for failure to pay rent. By law, a landlord must give you three days to pay the rent after the landlord demands it. However, parties can change the default timing in the law by agreement. That means some commercial leases change this three-day period, so it may be important to check your lease or confer with an attorney. A landlord cannot start the eviction process until a tenant has been given the required time to pay the rent. The landlord starts an eviction process through notice of the process and a detailed written petition showing when rent was due and that it wasn’t paid as required. A tenant can answer the petition and dispute the facts.

Eviction is the action of removing the tenant’s belongings from the property. That action is usually done with a sheriff or marshall. An eviction can only happen after the trial or where a tenant fails to answer the petition, on order by the court.

Commercial Tenant Eviction Rights

A landlord cannot evict a tenant without a court order and cannot take action that would have the effect of evicting a tenant without a court order. That means, a landlord cannot place padlocks on the doors of a tenant’s property to keep them from using it. Only the court eviction process of rent demand, followed by a petition can evict a tenant. Once the landlord gets the order allowing the landlord to evict the tenant, the tenant must be given notice of that order. The notice will give the tenant 72 hours from receipt of the notice to leave the property.

How long an eviction proceeding can last depends on what a tenant does. If a tenant pays on a rent demand or on the petition, the eviction process stops. If a tenant disputes the facts in the petition, the Housing Court will schedule the case for trial and attempt to settle it before the trial. The length of time between the answer to the petition and when the trial is depends on the Housing Court’s schedule. Even if the tenant didn’t have a reason to dispute the petition, he could extend the time they have before having to leave the property by asking for an order to show cause. That request, if granted, will stay the proceedings. That means, a court could place a temporary hold on any eviction to allow the tenant to remove their property.

Defenses to Nonpayment of Commercial Rent

A commercial tenant’s rights as described in a lease may include greater protection to how they use the property. Many commercial tenants require that only certain businesses in a shopping area exist. Other tenants may require a mix of businesses, such as books, plants, clothing and restaurants, rather than all clothing stores so as to protect against too much competition. Others may need to protect their image. For example, a children’s book seller might find their business declining when a strip club with windows moves in next door. Commercial leases tenant’s rights also include withholding rent for failure to maintain property or common areas like sidewalks or lobbies. Commercial leases tenant’s rights also include the right to withhold rent for noise pollution. For example, a group who starts a lease with a landlord for the purpose of running a yoga center might be able to withhold rent when the landlord moves in a drum testing company next door.

About the Author

Maggie has a J.D. from Emory Law School, with honors, where she was Editor-in-Chief of the Emory Bankruptcy Developments Journal. She is the author of various articles on regulation, policy, and compliance. She speaks in classrooms on law and health policy and works on compliance in health care and real estate.

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