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CalAttorney2, Lawyer
Category: Real Estate Law
Satisfied Customers: 10244
Experience:  I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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I have been in dispute with property management over lack of

Customer Question

I have been in dispute with property management over lack of repairs since I moved in last August. Had a broken stove, 1 burner only worked, boiler was leaking, hot water ran out in shower within 3 minutes, thermostat broken in downstairs portion of duplex. I finally withheld rent to get attention. As something was repaired I would pay a month, with understanding that everything needed repaired/replaced. I was assured it would done immediately and then nothing for months. They filed to evict me, when I met with the attorney /property owner, I explained everything that happened and we adjourned to make all repairs, I gave him a check that day. The adjourn date was coming up, he called for status a dynamic I told him that property Mgr had not reached to me to schedule the repairs. He said he'd get an adjournment and let me know the new date. I was away at a conference when the last of the major repairs were done, I received a phone call asking me about catching up on the rent and that was my last contact. I have called and left several messages with the attorney but he doesn't return my call. I pay my current rent and leave requests to call to arrange for a catch up schedule. I was startled awake by loud knocking at my door tonight (11:39 pm), by time I put something on, they left, but I believe it was a sheriff with eviction. I've never been formally or informally given any court dates, for me to be a no-show allowing him to get a default judgement against me. If he does have one, he was granted illegally. I have an 11 yo son with disabilities, I cannot become homeless and evicted. Can someone please help!
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  CalAttorney2 replied 1 year ago.
Dear Customer, To actually get an eviction, the landlord would have to serve you with notice, then go to court (at which point you would have an opportunity to defend the action), followed by a short period of time to vacate the unit prior to a forcible eviction.(Forcible evictions do not occur in the middle of the night). "Eviction" is a word that is often misused and it leads to a lot of confusion, to help, here are the steps in terminating a tenancy:Terminating a tenancy-1) Notice: The first step in any termination is giving notice, the landlord can simply give notice that they no longer want the tenant to live there (this is usually 30 days, or 60 days, and it can be done for no reason whatsoever, there is no fault, and while the tenant must relocate, they are not being "evicted" and there is no blemish on their rental history), they can give a "notice to pay or quit" (usually 3 day or 5 day depending on the state, and the tenant has this amount of time to pay rent that they missed or move out), "notice to "cure or quit" (the tenant has breached the lease - broken something, noisy, etc. and must stop it or fix it within the notice period, again 3 days, 5 days, or 10 days), or a "notice to quit" (this is a 3 day or 5 day notice that says the tenant has messed up so badly they can do nothing but move out within the notice period - there is no chance to "cure" - this often happens when there is illegal activity on the property). 2) Unlawful detainer/forcible entry and detainer (this is the legal proceeding where the landlord goes to court and sues the tenant to get possession - the tenant has an opportunity to appear and defend the action, common defenses include improper notice, breach of the lease (such as failure to maintain the property - "inhabitable conditions"). If the tenant answers the complaint, the parties can take "discovery" from one another and get additional information before a court trial before a judge. 3) A judgment of possession/writ of eviction - if the landlord wins the trial, they get a judgment of possession and the court will issue a "writ of eviction." 4) Forcible eviction - this happens when the Sheriff or Constable serves the writ of eviction - some jurisdictions give a courtesy notice the day or two before the eviction, others do not, but the end result is the sheriff overseeing the landlord's movers removing all of the tenant's possessions from the property and placing them on the curb, and the tenants are forcibly removed from the property. At that point, the landlord can change the locks and the tenant can no longer return (They have been "evicted").
Customer: replied 1 year ago.
That does not describe anything I've researched, specifically pertaining to Nassau County landlord tenant laws. I believe I'm going to be served with a 72 hour vacate at which point if I have not vacated the premises, it's been ordered to put my belongings in storage. My questions have not been answered nor have I been guided in any sense of the word, I've only been given a terminology lesson. Thanks but no thanks
Expert:  CalAttorney2 replied 1 year ago.
Have you actually been to court?
Expert:  CalAttorney2 replied 1 year ago.
Without a court order, they cannot force you out.
Customer: replied 1 year ago.
First time I met with the attorney was in LT Court. I explained my grievances and he told me if I gave him a check that say, he would assure me all repairs would be made. Then I would need to catch up to current. I agreed wholeheartedly. We adjourned
Expert:  CalAttorney2 replied 1 year ago.
When you say "We adjourned" - what happened to the case?Was the matter dismissed?
Customer: replied 1 year ago.
No, it was adjourned pending all repairs. The next court date, repairs were not done, new stove, heat, upatair's shower. Boiler was replaced though. The atty said he would get an adjournment since he had to be at court anyway and he'd notify me of the new date. I never heard from him, letter, phone call, zero communication. No idea when new date was
Expert:  CalAttorney2 replied 1 year ago.
I would recommend contacting the court tomorrow and finding out what the status of your court case is.The constable will not perform a forcible eviction without a court order.I understand your concern is that the attorney went and got a court order without giving you notice, but you need to contact the court to determine what the status actually is.If you find that the court did actually issue an order, you will want to try to file an "ex parte" motion to have the court's order set aside due to failure to give you notice of the proceeding.
Customer: replied 1 year ago.
So if I call the court in the morning and speak with the clerk? I can get the status of my case. If they were granted a default judgment and the Judge signed an Order, can I tell the clerk that I will need a "ex parte" and would I be granted one that day?
Expert:  CalAttorney2 replied 1 year ago.
The clerk should be able to give you the ex parte calendar. Ex parte hearings are heard on the same day, but depending on what time of day you call, you may miss the scheduled appearance time (some departments have very early ex parte schedules).
Customer: replied 1 year ago.
I just searched ecourts and nothing at all came up with my name and then I searched by the attorney and there were several cases, some disposed (closed??) and others still active but my name was not there. That does not make any sense. There should be something with my name, right?
Expert:  CalAttorney2 replied 1 year ago.
Possibly. Not all courts list every case (family law, small claims cases, and UD cases are often not available), and the online registry is not something that you can rely on (most even require you to agree to a disclosure to this effect before allowing you to do a search).
Customer: replied 1 year ago.
I see other cases, some close to hear, even a prior tenant in the complex. I even searched by index and nothing is coming up
Expert:  CalAttorney2 replied 1 year ago.
I would contact the clerk's office. (Again, do not rely on the online service).While it is possible that the attorney really did go and file for a judgment without giving you notice, this kind of thing is actually very rare (doing so and getting caught can cause an attorney to lose their bar license - evicting one tenant is not worth losing the privilege to practice law over).I would be surprised if this happened, although it is a possibility.Again, the knock that you heard on the door in the middle of the night is almost certainly not an eviction. Forcible evictions are performed by the constable or sheriff and occur during the day (the sheriff has to oversee the eviction, and the landlord must hire movers or laborers to actually remove all of your property - they do not do this in the middle of the night). Most departments give a courtesy notice at least 3-5 days ahead of the actual eviction, the goal is to limit costs by having tenants move out first.

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