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Law Pro
Law Pro, Lawyer
Category: Real Estate Law
Satisfied Customers: 24031
Experience:  20 years extensive experience in real estate law, foreclosure, finance, and landlord tenant law.
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Hello my ex is living with me since she had our child. We have

Customer Question

Hello my ex is living with me since she had our child. We have had our differences and she has left twice in the past. The last time she came to live with me I told her was the final attempt. Well obviously it didn't work. She now refuses to leave. The lease is under my name and she has never given me any money and has barely helped out with chores. I have been asking her to leave for over two months now and I have even offered to help her Fonda an apartment and she says unless I pay for everything she won't leave but she makes $48,000 a year and no bills besides car insurance and gas because her phone is covered by her job. I served her with an eviction notice I printed and I had a witness at the end of the 30 days can I legally change the locks and put her stuff in storage?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Law Pro replied 1 year ago.

Welcome to JustAnswer! My goal is to do my very best to understand your situation and to provide a full and complete excellent answer for you.

My name is XXXXX XXXXX I'm going to assist you with your question.

Please bear with me if you believe my answer isn’t coming fast enough because I’m also working with other customers too. I apologize for any seemingly late response.

Sorry for your situation.

No, you can't just change the locks and place her property in storage - you have to get a court order for her eviction.

That although there isn't a written lease - she is a tenant and you can't use "self-help" or will be acting illegally.

For Non-Payment of Rent, the following procedures should be followed:

1. 3 DAY NOTICE:

Unless there is a written or verbal lease which indicates otherwise, before a Summary Proceeding (Landlord-Tenant proceeding) can be brought for non-payment of rent, a personal demand for rent or service of a written notice giving the tenant at least 3 days to pay the rent or surrender possession of the premises must be served upon the tenant.

The 3 day notice must state the amount of the rent due and the period of time for which the amount is due, together with a demand that the total amount be paid within three (3) business days after service of the notice. The date of service, Saturdays, Sundays and holidays are excluded.

2. AFFIDAVIT OF SERVICE (for service of 3 day notice):

After the 3 day notice has been served on the tenant, an Affidavit of Service must be signed before a Notary Public by the person that served the 3 day notice. The papers must be served by a person over the age of 18 years old. It is suggested that the papers NOT be served by the landlord, but by a disinterested third person.

After the tenant has been served with the 3-day notice and has failed to pay the rent due, a Landlord- Tenant Proceeding can be initiated in the City Court by completing and filing the following documents:


3. NOTICE OF PETITION (e.g. Blumberg Form X445):


This paper can be issued by an Attorney, a Judge or the Clerk of the Court. If a Judge or the Clerk of the Court is asked to sign the Notice of Petition, the Petition must be completed by the landlord and submitted to the City Court offices before it is served on the tenant.


4. PETITION (e.g. Blumberg Form X444):
The Petition is a form that must be completed by the landlord and attached to the Notice of Petition and the 3-day notice, which was previously served on the tenant.

The Petition must state the respondent’s interest in the property, that is, the petitioner must specify if the respondent is a tenant, a sub-tenant, or someone in possession of the property for some other reason. To do this, the petitioner should state if there is a written lease or a verbal agreement to lease, and if so, the terms of such an agreement (length of lease term and payment schedule e.g. payment once a month)

The landlord is to sign the Petition before a Notary Public.

When the papers are completed, a Court Date provided and the Judge or Clerk of the Court has signed the Notice of Petition, then and only then can the tenant be served with the Notice of Petition and Petition.

The Notice of Petition, Petition, 3-day Notice (previously served on the tenant) and corresponding affidavit must be filed with the Court in DUPLICATE along with the filing fee. The Judge or Clerk of the Court will sign the Notice of Petition and return the Notice of Petition and Petition to the Landlord. The Notice of Petition and Petition must be served on the Tenant not less than 5 days and not more than 12 days before the Court date.


5. AFFIDAVIT OF SERVICE (for service of Notice of Petition and Petition):

This Affidavit of Service is filed with the Court after service of the Notice of Petition and Petition on the tenant. The Notice of Petition and Petition must be served by a person 18 years or older. The person serving the papers will be attesting to the fact that the papers were served within the time limits allowed (not less than 5 days and no more than 12 days before the Court date). The person who serves the papers must not be a party to the action.

It is preferable that personal service be made upon the respondent- tenant or upon a person of suitable age and discretion residing with the respondent-tenant. In cases where personal service is not possible, service may be made by "nail and mail", that is, posting the papers on the door of the residence of the respondent-tenant AND mailing a copy of the papers by certified mail, return receipt requested. (RPAPL sec. 735)

The Affidavit of Service must be filed with the Court within 3 days after service. FAILURE TO FILE THE AFFIDAVIT OF SERVICE WITHIN 3 DAYS AFTER SERVICE MAY RESULT IN THE DISMISSAL OF THE CASE.

If, at any time, it is determined by the Landlord that the Court date is no longer needed, the Landlord should notify the Court, in writing, as soon as possible which may be faxed to the City Court. Note: The filing fee can not be returned.

If the tenant pays the outstanding rent before the Court proceeding, the tenant cannot be evicted from the premises.

If the tenant fails to appear on the Court Date, the Court may sign the following document:


6. WARRANT for Non-Payment: (e.g. Blumberg Form T447):

This document should be completed prior to the Court date by the landlord and brought to the Court hearing. The Court will sign this document if the tenant fails to appear for the Court hearing. This will enable the Sheriff to remove the tenant from the premises.

Note: There is a mandatory 72-hour waiting period between the time you serve the tenant with a warrant and when the tenant may be removed from the premises by the Sheriff.



Customer: replied 1 year ago.
How much do I request in the notice to pay? The tent for the month or all the back rent owed? What if I don't want her to pay me at all and just leave do I still have to serve her with a notice to pay? When she moved in she did verbally and through text promise to pay half the rent. It's been 19 months later now.
Expert:  Law Pro replied 1 year ago.
You don't have to notice her to pay anything but just notice her to vacate - because she doesn't have a formal lease or lease term.

Although I might demand the 1/2 rent - verbal agreements are valid and binding. The statute of limitations is 6 years.

So you can demand the rent and get an award but don't have to reduce the award to a judgment if you don't want to - but let her go.


Thank you so much for allowing me to help you with your questions. I have done my best to provide information which will be helpful to you. If I have not fully addressed your questions or if you have any follow up questions, or if I have misinterpreted your questions in any way, please do not rate me yet, but simply ask a follow up question without rating so I can provide you with a fully satisfactory answer. If I have fully answered your question(s) to your satisfaction, I would appreciate you rating my service with 3, 4, or 5 faces/stars so I can receive credit for helping you today. I thank you in advance for taking the time to provide me a positive rating!




Customer: replied 1 year ago.
Ok thank you so far you've been great. In this case I am the landlord correct? I don't have to go to my landlord and bother him with this embarrassing situation do I? What I have to do is serve her with a notice to vacate and have a third party present her with the notice and if she fails to comply then involve the courts correct?
Expert:  Law Pro replied 1 year ago.
In this case I am the landlord correct?

CORRECT - YOU ARE THE LL.

I don't have to go to my landlord and bother him with this embarrassing situation do I?

NOPE.

What I have to do is serve her with a notice to vacate and have a third party present her with the notice and if she fails to comply then involve the courts correct?

CORRECT. SOME FRIEND CAN SERVE HER - IT CAN BE YOU BUT THAT SOMETIMES CAUSES PROBLEMS IF SHE SAYS YOU DIDN'T SERVE HER.


Thank you so much for allowing me to help you with your questions. I have done my best to provide information which will be helpful to you. If I have not fully addressed your questions or if you have any follow up questions, or if I have misinterpreted your questions in any way, please do not rate me yet, but simply ask a follow up question without rating so I can provide you with a fully satisfactory answer. If I have fully answered your question(s) to your satisfaction, I would appreciate you rating my service with 3, 4, or 5 faces/stars so I can receive credit for helping you today. I thank you in advance for taking the time to provide me a positive rating!
Law Pro, Lawyer
Category: Real Estate Law
Satisfied Customers: 24031
Experience: 20 years extensive experience in real estate law, foreclosure, finance, and landlord tenant law.
Law Pro and 5 other Real Estate Law Specialists are ready to help you
Customer: replied 1 year ago.
Thank you so much
Customer: replied 1 year ago.
Thank you so much. So in NY legally I have to give her how many days to vacate? Does this include weekends and holidays? Sooty for all the extra questions I just want to so this right and I appreciate your help very much. Thank you and god bless.
Expert:  Law Pro replied 1 year ago.
No problem with the additional questions at all.

3 days is the required notice you a have to give her - that's all - just 3 days and includes weekends (add additional days if a national holiday).




Thank you so much for allowing me to help you with your questions. I have done my best to provide information which will be helpful to you. If I have not fully addressed your questions or if you have any follow up questions, or if I have misinterpreted your questions in any way, please do not rate me yet, but simply ask a follow up question without rating so I can provide you with a fully satisfactory answer. If I have fully answered your question(s) to your satisfaction, I would appreciate you rating my service with 3, 4, or 5 faces/stars so I can receive credit for helping you today. I thank you in advance for taking the time to provide me a positive rating!
Law Pro, Lawyer
Category: Real Estate Law
Satisfied Customers: 24031
Experience: 20 years extensive experience in real estate law, foreclosure, finance, and landlord tenant law.
Law Pro and 5 other Real Estate Law Specialists are ready to help you
Customer: replied 1 year ago.
Since she has no key to the apartment only the main entrance can I put a curfew on her entering the apartment. She goes out and wakes me up in the wee hours.
Expert:  Law Pro replied 1 year ago.
Regretfully, no. I understand your complaint completely. However, this is a "residence" not a commercial business - you could if it was a commercial business.
Customer: replied 1 year ago.
Can I at least take her possessions out if my room and lock my room? Which she also gas no key. I'm trying to keep her away from me she has been slowly destroying my stuff I just realized today when I got home from work that some clothes are missing and I caught her scratching my sunglasses.
Expert:  Law Pro replied 1 year ago.
Yes, certainly. You can have your privacy and limit her ability to enter your bedroom.

She sounds like a "nightmare" - you have my sympathy having to deal with her.

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