A squatter ‘fix’ that can fix squatting – Empire Center for Public Policy

Some New York lawmakers took a victory lap last week after passing a budget bill with language aimed at dealing with a rash of illegal employment in the Empire State. However, it may not affect the status quo. The new provision distinguishes squatters from non-squatters. But the law was already clear about this distinction.

The legislative fix takes aim at a misperception of the law that became conventional wisdom: that squatters have rights after occupying properties for more than 30 days. But New York courts have never been confused on this issue. In the past, the courts skillfully distinguished between squatters who had no rights of possession and were never permitted to be there and tenants with valid possessory interests in the property.

The recent legal misperception stems from Section 711 of the Real Property Actions and Proceedings Law (RPAPL) and Section 26-521 of the New York City Administrative Code. The key terms in these laws are tenant and legal occupier.

Section 711 of the RPAPL requires property owners to initiate a special proceeding in state court to remove tenants or legitimate occupants of its properties. It also sets out the grounds on which this special procedure can be initiated.

Section 711 also expands the definition of tenant to include rooming house occupants and hotel residents who have held one or more rooms for 30 consecutive days or more. A squatter is neither a tenant nor a legal occupant under state law.

It is illegal under state law and New York City code to evict without a court-ordered eviction order or a government eviction order a person who has legally occupied the housing unit for 30 consecutive days or more or signed a lease for the housing unit. A person who willfully violates the law is guilty of a Class A misdemeanor and may be civilly liable for a monetary penalty of $1,000 to $10,000.

It is not illegal for landlords to evict illegal squatters without a court-ordered eviction order or a government eviction order. This is known as self-help eviction, usually when the landlord locks out the squatter by changing the locks. A property owner using self-help can be assisted by the police arresting squatters for trespassing or persuading them to leave without violence or threatening their personal safety.

A landlord can also obtain court permission to evict a squatter. Section 713 of the RPAPL provides a property owner with access to summary proceedings against an occupied occupant after a 10-day notice to vacate (instead of 30 days for legal tenants or occupiers).

The other temporary provisions for proceedings under the RPAPL are the same. After the notice to quit is due, the landlord can serve the commencing documents on the squatter with no less than 10 and no more than 17 days notice of the court date. The squatter can then obtain an automatic adjournment upon request. In recent years, the Legislature extended the minimum notice period from five to 10 days and added the automatic deferral provision. The initial deferral changed from no more than 10 days to no less than 14 days. These changes to favor tenants extended to squatters.

A prudent property owner can seek an eviction order for a squatter under Section 713 to avoid the time and expense of being taken to court by a squatter alleging illegal eviction. New York discourages intimidation or undue violence in evicting people from real property with treble damages under its forcible entry and detainer law. However, squatters may be evicted without proceeding under section 713.

The Appellate Division of the First Department made it clear 30 years ago in Paulino v. Wright. There, homeless people sued New York City alleging illegal self-help eviction. The plaintiffs had moved into a derelict building owned by the City and had made repairs and improvements. The NYPD and the City evicted them without a Section 713 eviction order.

The appellate court reiterated that section 713 only permits a special proceeding as an additional means of effecting the removal of nontenants, but it does not supersede the property owners right to evict a trespasser without due process of law (emphasis in original). And the court made it clear that squatters who can be evicted without due process include squatters.

The new provision (Part II of the ELFA Bill) which guarantees in law that squatters are not tenants may reduce confusion about the rights of people who occupy property for more than 30 days. And this clarification may give landlords more confidence to ask the police for help in self-help evictions, but it didn’t change the rights they already had before this month.

Sen. Mario Mattera and Rep. Steve Stern have separately introduced a bill proposing a formal complaint procedure for police to remove illegal squatters that could also help homeowners. A landlord must make certain statements under penalty of perjury establishing ownership and the occupants’ status as squatters. The proposed bill still allows a landlord to be held liable for an illegal eviction. The merits of allowing landlords to evict squatters with the assistance of the police without the need for court proceedings may be worth a debate in the Legislature.

Under current law, there may be circumstances too complicated for the police to be willing to help without an eviction order or eviction order. Fake documents and people tricked into thinking they are legitimate tenants or sublease holders can make police hesitant to make arrests. Or a property owner may want to err on the side of caution to avoid a treble damages lawsuit for wrongful eviction. But the newly added definition of squatters does nothing to minimize the expense and delay of going through court proceedings that frustrates property owners and can embolden squatters.

Courts could limit the delay in squatter cases by the way they handle their dockets under current law, or the Legislature could pass a law providing an expedited procedure for squatter proceedings. For now, however, landlords unwilling or unable to use self-help must bear the same costs and delays in eviction proceedings that are not helped by a clearer definition of occupation.