Wednesday, December 7, 2016

SELF HELP EVICTIONS



RPAPL § 711 provides that an individual who has resided at a premises for thirty consecutive days or longer may not be removed from the premises without a special proceeding, warrant of eviction or court order. Thus, an individual who does not fall under that protection can be evicted by a peaceful self-help. See TANTARO v. COMMON GROUND COMMUNITY HOUS. DEV. FUND, INC., 2015 NY Slip Op 31379 - NY: Supreme Court 2015:

"Plaintiff was no more than a "licensee," who was properly restricted from the building pursuant to Common Ground's Visitor Policy. See generally Korelis v Fass, 26 Misc.3d 133(A) (App. Term 1st Dep't 2010) (judgment after trial dismissing petition seeking restoration to an apartment affirmed, as petitioner "was only a licensee — and therefore had no independent right to possession of the apartment"). Notably, plaintiff takes no issue with Common Ground's Visitor Policy; her apparent claim is that the policy did not apply to her. Plaintiff's argument that the Court misapprehended controlling law in concluding that Common Ground could engage in peaceful self-help to evict plaintiff, a residential "licensee," because it relied on cases involving self-help eviction of commercial licensees, is unavailing. Indeed, appellate authority cited by plaintiff herself makes clear that the common-law remedy of peaceful self-help in evicting non-tenants, who have not established that they are lawful occupants or permanent tenants, applies equally to residential and commercial landlords alike. See Almonte v City of New York, 166 Misc.2d 376-377 (App. Term, 2nd Dep't 1995); see also P&A Bros. v City of N.Y. Dept. of Parks & Recreation, 184 AD2d 267, 268-269 (1st Dep't 1992) ("non-tenants may be removed summarily so long as it is done without violence"). And plaintiff cites no legal authority to support her apparent claim that the self-help remedy is only available for "squatters," such as those in Paulino v Wright, 210 AD2d 171 (1st Dep't 1994), and not "licensees.""

If an individual does fall within RPAPL 711 protection, can that protection be waived? In McCormick v Resurrection Homes 2012 NY Slip Op 22384 Decided on December 19, 2012 Civil Court Of The City Of New York, Kings County Scheckowitz, J:

"The court finds that provision in the resident agreement permitting self-help is unenforceable and that petitioner was illegally evicted from the premises without due process of law. RPAPL § 711 and NYC Administrative Code § 26-521 are clear that any individual who resided at a premises from more than thirty days is entitled to due process of law prior to eviction. Here, respondent admittedly engaged in self-help without seeking a court order or the assistance of a New York City marshal or sheriff prior to removing petitioner from the premises. Respondent does not cite any authority that indicates that their particular housing accommodation is a special class of housing that is exempt from following these laws. Ms. Jackson also testified that respondent commenced a companion non-payment proceeding against petitioner, Resurrection Homes v. Ebony McCormick, under L & T Index Number 86787/12. By filing the proceeding against Ms. McCormick respondent recognized her rights as a tenant at the premises.

The court also finds that the resident agreement is an unconscionable contract of adhesion; a contract drafted by a party with superior bargaining power and is offered to a party who does not have the option of negotiating the terms. See Finkel and Ross v. A.G. Becker, 622 F. Supp. 1505 (S.D.N.Y 1985). Recently, this court was presented with a similar issue in Davidson v. House of Hope, L & T 19600/12; NYLJ 11/28/12, 1202579307267 (Civ. Ct. Kings Co.). In Davidson, petitioner had signed a "Waiver of Tenant Rights" with respondent, a purported transitional support residence for men with mental impairment and substance abuse issues. The agreement provided that petitioner wa s not a tenant and did not have the right to stay at the property if asked to leave. This court found that the agreement was unenforceable because it ostensibly waived petitioner's right to receive due process of law prior to being evicted. This court also rejected the respondent's argument that as a transitional facility it had the right to evict petitioner without commencing a summary holdover proceeding because a typical landlord-tenant relationship had never been created.

The same determination was made by the court in Wright v. Lewis 21 Misc 3d 1120(A) (Sup. Ct. Kings Co. 2008). In Wright a residency agreement, in a two family house in this county, provided that residents were not tenants of a room but were clients of a sober recovery residence and could be evicted without court process. The court found that the agreement was an unenforceable contract of adhesion because it contained terms that were unfair and arose from a disparity of bargaining power or oppressive tactics and waived the residents' statutory tenancy rights. Wright v. Lewis, 21 Misc 3d 1120(A) (Sup. Ct. Kings Co. 2008) quoting Love M/Sheltering, Inc. v. County of Suffolk, 33 AD3d 923, 924 (2nd Dept. 2006); See also Rock v. Klepper, 23 Misc 3d 1103(A) (Plattsburg City Ct. 2009);"

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