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What are Common Defenses to a NYC Nonpayment of Rent Case?

Posted by Melvin Monachan | Jan 10, 2020 | 0 Comments

Whether you are a landlord or a tenant, it is important to know what defenses can be used when an eviction action is started due to failure to pay rent. Sometimes these actions are necessary and reasonable, but other times they are not. Here's what to know if you are a landlord in New York and intend to file a claim for nonpayment of rent or if you are a tenant and haven't paid the rent and believe you have a good reason for it.

Defense No. 1: No Notice

The landlord must give the tenant proper written notice.  The written notice must also be served on you properly. Minus proper notice and proper service, a tenant in New York may have a valid defense in an eviction proceeding. Landlords, keep this in mind: you must follow the rules accordingly or your case could be dismissed in the tenant's favor. And tenants, also keep in mind that you must be given notice. 

Defense No. 2: Payment

When a tenant is given notice that an eviction proceeding is in the works if payment is not made, the tenant can cure the issue by making payment. Even after payment is made, however, a landlord may still try to evict the tenant. Nonetheless, so long as the tenant pays the rent in full any time before the court date, the landlord must accept it. This acceptance effectively ends the case.

In some cases, the landlord may try to overcharge the tenant, if that's the case, the tenant only needs to pay the rent in accordance with the rental or leasing agreement. The landlord cannot attempt to overcharge in the hopes of getting you out of the rental unit.

Still, in other cases, the landlord may refuse to take your rent. The landlord may outright refuse to accept payment, may take your check and never cash it, or simply hide from you. A landlord may behave this way to induce you to leave the rental unit, but it is unlawful. The landlord must accept the rent payment.

Defense No. 3: Repairs Unrepaired

The tenant may have complained about certain repairs or services (e.g., heat, water, gas) that need to be repaired or otherwise fixed. The landlord must maintain the premises so that they are in good condition and habitable. This defense for the tenant is known as the warranty of habitability. If the landlord has proof the repairs were completed, the tenant no longer has a defense.

Defense No. 4: Laches

In some cases, the landlord may way months before starting an eviction notice. The landlord may never have asked the tenant when the rent would be paid, and maybe the tenant continued not to pay for good reason -- for example, the person who pays the rent is in the military and has not been able to get payment to the landlord yet. When a landlord waits -- intentionally -- to sue a tenant for rent and it harms the tenant, this is called laches and is a defense to nonpayment of rent.

Defense No. 5: Harassment

When a landlord wants a tenant out, he may try self-help methods to do so, like:

  • Threaten a tenant
  • Stop the heat and hot water
  • Change locks
  • Overcharge a tenant.

Any of these methods and more are a form of harassment. A landlord cannot harass tenants. And tenants can use this as a defense for nonpayment of rent. 

In New York, both landlords and tenants have rights and responsibilities. When one party fails to adhere or perform according to the law, like not pay rent, then there are ways to cure the problem. If you have questions about your rights and responsibilities specific to payment of rent, it may be wise to schedule a consultation with a landlord/tenant law attorney. Getting the answers before the issue worsens can save you a lot of time and money.

About the Author

Melvin Monachan

Melvin Monachan is the founder of The Law Office of Melvin Monachan, PLLC, a full service, real estate law firm representing individuals, investors and corporate entities in all aspects of real estate law. On the transactional side, Melvin represents purchasers and...


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