Tenants have the legal right to withhold rent when their landlord fails to provide safe and habitable housing. This right is protected under Real Property Law § 235-b, known as the Warranty of Habitability.
When Can Rent Be Withheld?
A tenant may choose to withhold rent if serious repair issues or code violations exist, such as:
No heat or hot water
Mold or persistent leaks
Unsafe wiring or pest infestations
Other major health or safety violations
Before withholding rent, the tenant must notify the landlord in writing of the issues and give them a chance to fix the problem. It’s also best practice to contact Code Enforcement to document the violations officially.
⚠️ Important Note: Put Withheld Rent in Escrow. Tenants should not spend the rent money they are withholding. Instead, set it aside in an escrow account or separate savings, in case the court requires you to pay some or all of it later.
What Happens If the Landlord Sues?
If a landlord sues for nonpayment, the tenant must appear in court and raise the issue of uninhabitable conditions. Tenants can request the court to:
Stay the eviction proceedings until repairs are made Based on RPAPL § 755
Reduce (abate) the amount of rent owed due to poor conditions Based on RPL § 235-b
Order repairs, especially when the landlord is trying to terminate the tenancy Based on UCCA § 203
I’m being Evicted
If you are being evicted and need assistance please go to our services pages to learn how we can help.
Retaliatory Eviction Is Illegal. Landlords are prohibited from retaliating against tenants who exercise their legal rights. It is illegal for a landlord to evict a tenant or make substantial changes to their tenancy in response to the tenant taking certain protected actions.
What Counts as Retaliation?
It is illegal for a landlord to serve a Notice to Quit (or begin eviction proceedings) in retaliation for any of the following:
Filing a good faith complaint about:
Housing code violations
Duty of repair issues
Warranty of habitability
Any other housing-related legal violation
Taking legal action against the landlord (e.g. small claims or housing court cases)
Organizing or joining a tenant association or union
Rebuttable Presumption of Retaliation
If a landlord attempts to evict a tenant or change their lease within one year of the tenant taking one of the protected actions above, it is presumed to be retaliation, unless the landlord can prove otherwise. This is called a “rebuttable presumption.”
⚠️ Important Note: If the tenant owes rent or has violated the lease, a landlord may have valid grounds for eviction. In such cases, retaliation may be harder to prove, and the presumption may not apply.
Other Forms of Retaliation Are Also Prohibited
Landlords cannot substantially alter the terms of your tenancy as a form of retaliation, including:
Refusing to renew your lease or tenancy
Failing to offer a new lease
Increasing rent or decreasing services unjustifiably
Imposing new, burdensome rules targeting you after you’ve taken protected actions
A 14-day notice is issued by a Sheriff, Marshal, or Constable once the landlord obtains a signed warrant of eviction from a judge. This is the final step in the eviction process before physical removal.
⚠️ Important Note: Evictions can happen without a court process, but tenants have the right to defend themselves. If you never received notice to appear in court, you may be able to challenge the eviction with an Order to Show Cause (OTSC). UTA can help you fill one out.
I’m being Evicted
If you are being evicted and need assistance please go to our services pages to learn how we can help.
The 14-day notice must be triggered by a signed warrant of eviction issued by a judge.
A live warrant allows the landlord to bring the warrant to the Sheriff, who will then serve the 14-day notice via mail, posting, or personal delivery.
The 14-day period includes weekends and holidays, but the lockout cannot occur on those days.
Evictions can only happen on business days, during daylight hours.
If You’ve Received a 14-Day Notice
Start preparing immediately. Pack important documents, medications, and valuables.
After the 14 days expire, the Sheriff will come to change the locks. At that point, the apartment is no longer legally in your possession.
If you fully complied with a court agreement but still received the notice, go to court immediately and file an OTSC.
Rights in Nonpayment of Rent Cases
In a nonpayment eviction, the tenant has the right to pay all rent owed up to the time of the eviction to stop the lockout.
Bring full payment (not partial) to court or directly to the landlord, preferably with proof.
If you are on a payment stipulation and miss a payment by even a day or a dollar, the landlord may proceed with eviction without going back to court.
After the Lockout
The landlord is responsible for keeping your belongings safe and dry for a reasonable time (typically 14–30 days).
This does not mean you get to stay in the unit.
Landlords cannot hold your items for ransom, but they can charge for storage if they place your items in a unit.
Emergency Shelter After Eviction
New York is a Right to Shelter state. You cannot be left without a place to go.
Before 4:30 PM (weekdays): Go to the Albany County Department of Social Services, 162 Washington Ave.
After 4:30 PM or weekends/holidays: Contact Homeless and Travelers Aid Society (HATAS) at 138 Central Ave or call 518-463-2124 for emergency shelter help.
Illegal Lockouts
It is illegal for a landlord to evict you without a court process and a 14-day notice.
If You’re Locked Out Without Notice:
Call your local court to see if a case was filed and if a judgment was entered.
If yes: You may need to file an Order to Show Cause (OTSC)
If no case was filed: This is likely an illegal lockout
Call the police non-emergency line and request assistance getting back into the home.
Breaking in with police assistance is legal in an illegal lockout.
Ask the officer to complete a Significant Incident Report (SIR).
Get the officer’s name and badge number
If the officer is reluctant, persist politely but firmly
🚨 Illegal lockouts are a Class A Misdemeanor. You can also sue the landlord for damages.
Money Judgments
Eviction cases can result in a money judgment for unpaid rent. There are two types:
1. Possessory Judgment
The tenant must pay the amount owed to remain in the unit.
Nonpayment results in eviction.
Often ordered as a lump sum or installments.
2. Non-Possessory Judgment
The court awards the landlord money owed, but the tenant doesn’t have to move out.
These usually apply when the lease has already ended or the tenant is no longer in the unit.
Money judgments can have consequences such as:
Damaged credit
Frozen bank accounts
Wage garnishment (typically 10% of gross income)
Added fees from the Sheriff or Marshal
Harder to rent future housing
Cycle of eviction and unsafe housing
Less access to homeownership
Long-term financial impact, especially for BIPOC communities
Judgments accrue 9% interest and remain valid for 20 years
Rarely covered by Social Services, seen as non-emergency debt
An Order to Show Cause (OTSC) is a legal tool tenants can use to ask the court to reopen or review a case, especially if something went wrong in the court process. Filing an OTSC is free in City and Town Courts in New York.
When Can a Tenant File an OTSC?
1. If the Tenant Missed a Court Date
If a tenant did not appear at their scheduled court hearing, they may file an OTSC to:
Explain why they missed court (such as not being properly served court papers)
Ask for another chance to appear and present their case
Example: A tenant receives a 14-day eviction notice but never got the court papers beforehand. They had no idea there was a court case and missed the appearance. An OTSC can be filed to reopen the case and explain what happened.
2. If the Tenant Appeared but the Landlord Didn’t Follow the Agreement
Tenants can also file an OTSC after attending court, if:
They followed the terms of a stipulation (court agreement) but still received a 14-day eviction notice
The landlord violated the agreement, such as failing to make agreed-upon repairs or refusing a payment that was due under the stipulation
Example: The tenant paid the rent as agreed in the settlement, but the landlord still sent a notice of eviction. Or, the landlord promised to repair something and did not. An OTSC can help the court review and enforce the original agreement.
Using an OTSC in Small Claims Court
OTSCs are also used to vacate a default judgment in Small Claims Court. This is often necessary when:
A tenant didn’t know a case was filed and later learns a judgment has been entered against them
The landlord sued at an old address, so the tenant was never notified
Steps:
The tenant should call the local court to check if a claim was filed.
If a case exists and a default judgment was entered, the tenant can file an OTSC to try to reopen the case.
If no case was ever filed, but a judgment appears on the tenant’s record, legal advice is recommended.
What’s in an OTSC Application?
When completing the OTSC, tenants must explain:
Why they missed court or believe the case should be reviewed (e.g. improper service, mistake by the landlord or court)
What their defense or argument is (e.g. they paid rent, landlord broke agreement, case was filed in error)
The court will review whether the tenant has a valid reason for reopening the case and whether they have a potential defense.
Even if a tenant had a good reason for missing court, the judge may deny the OTSC if the tenant has no legal defense or no way to resolve the issue, such as being unable to pay undisputed rent arrears.
What Happens After an OTSC Is Filed?
If the judge signs the OTSC, the following steps usually apply:
The tenant must serve:
The Sheriff, to stop the 14-day eviction notice
The landlord, using a disinterested third party
An affidavit of service must be filed with the court to confirm service
A new court date will be scheduled
Both parties will reappear in court to “show cause” (explain their side)
At that point, the case will proceed like any other housing court case: the tenant and landlord may try to settle or proceed to trial.
Once a landlord has served the proper notice (such as a rent demand, notice to cure, or 30/60/90-day termination notice) and the lease or notice period has expired, they can file for eviction in the local court where the apartment is located.
I’m being Evicted
If you are being evicted and need assistance please go to our services pages to learn how we can help.
Court papers must be served 10–17 days before the court date.
If papers are served too early or too late, the tenant may be able to have the case dismissed.
Papers must be served by a disinterested third party, and may be delivered by:
Certified mail
Regular mail
Personal delivery
After Papers Are Served
The tenant should prepare to attend the court date.
If the tenant does not appear, the judge may issue a:
Default eviction (warrant is issued immediately)
Money judgment for unpaid rent
Even after a default judgment, the landlord must still go to the Sheriff’s Office to serve the tenant a 14-day notice to vacate. Except in rare cases, tenants should always receive this notice before being evicted.
Important service rules:
No servicing can take place on on Sundays
Papers must go to someone of “suitable age” (typically 14 or older)
Papers cannot be served at the tenant’s workplace
An affidavit of service must be filed to confirm proper delivery. If this is not done, the case can be dismissed.
Resolving Nonpayment Cases
If a tenant pays all the rent owed before the court date or eviction, the case should be dismissed. If this is the case, the tenant should call the court to confirm the case has been withdrawn.
If the landlord refuses payment after the eviction warrant was granted by the court, the tenant can file an Order to Show Cause to prevent the eviction.
If a tenant misses court for a good reason, they should file an Order to Show Cause immediately.
Court Filing & Attorney Fees
If the landlord wins the case, they are usually entitled to recover the $45 court filing fee.
During settlement negotiations, this fee is often used as leverage—it can be waived or split.
Judges generally do not tie the filing fee to the eviction outcome, but this varies by court.
Attorney fees should not be tied to an eviction case. The landlord may request this but tenants can refuse.
First Court Appearance
Tenants are entitled to an adjournment – often for 14-days – but it must be requested in person during the first appearance. Tenants should explain the reason for the request. For example, “I need time to find a lawyer”, or “I’m working with another agency that may be able to pay my rent”. It is not common that a tenant receives more than one adjournment.
If a Settlement is Reached
Most housing court cases are settled outside the courtroom (often in the hallway). These agreements are legally binding and become court orders. Common types include:
“Stayed Pending Payments” – Payment Plans
The tenant agrees to make regular payments toward both back rent and current rent.
A warrant of eviction is still issued but paused (or “stayed”) as long as payments are made on time.
Missing a payment—even by a small amount or a single day—allows the landlord to move forward with the eviction.
If the tenant catches up on missed payments, the eviction can be stopped.
“Warrant with Stay” – Vacating by Agreement
The tenant agrees to move out by a set date and may forfeit their security deposit in exchange for extra time.
A warrant of eviction is issued, but it is paused until the agreed move-out date.
If the tenant stays beyond that date, the landlord can immediately execute the warrant.
“Lockout Warrant”
The tenant agrees to leave by a set date.
After that date, the landlord may proceed with the lockout immediately.
No 14-day Sheriff’s notice is required if the tenant remains past the agreed-upon date.
If No Settlement is Reached
Tenant Has Legal Defenses
The tenant may request a 14-day adjournment to:
Seek legal help
Gather evidence
A trial may be scheduled if there is a dispute over:
The amount of rent owed
Code violations or habitability issues
How the court papers were served
Tenant Has No Legal Defense
The judge may issue:
An eviction order
A money judgment for unpaid rent
The judge may allow additional time to move out, but this is not guaranteed.
Trial
If no agreement is reached, the case goes to trial. Both sides present evidence, and the judge makes a decision.
Tenants should bring:
Receipts showing rent was paid
Photos or videos of housing/code violations
Copies of communication with the landlord (texts, emails, letters)
At least three printed copies of all evidence to submit to the court
The tenant had a fixed-term lease (e.g., a 12-month agreement) that has expired.
The tenant is month-to-month and has received proper written notice to vacate. (See section: Month-to-Month Lease)
Lease termination notices do not need to be notarized or formal, but must be in writing.
If you live outside a locality with Good Cause Eviction, the landlord does not need to give a reason for ending your lease.
In the City of Albany and other Good Cause municipalities, landlords must provide a valid reason and cannot simply choose not to renew (see Good Cause Eviction section).
If your landlord claims you’re not protected by Good Cause Eviction, they must provide written documentation stating why.
⚠️ Important Note: Receiving a lease termination does not remove the tenant’s obligation to pay rent up to the last day of the tenancy.
Once proper notice has been served and the tenant remains in the unit:
The landlord may file a holdover eviction.
If the tenant pays rent after the termination date and the landlord accepts the payment, the holdover is invalidated and the landlord must start the process over.
Breach of Lease
If a landlord claims a serious violation of the lease, they must:
Provide a written notice to cure, giving the tenant 3, 5, or 10 days (depending on the lease language) to correct the issue.
If the tenant fixes the problem, the issue is resolved. If not:
The case can go to court.
If the court finds the tenant did violate the lease, the tenant will usually be given 30 days to correct the violation.
If the tenant still does not comply, eviction is likely.
Squatters
A property owner may begin a squatter eviction if there is no landlord-tenant relationship with the occupant. This may happen if:
The owner bought the property in a foreclosure sale.
The occupant moved in as a guest but never signed a lease.
The occupant moved in without permission as a squatter.
In these cases, the owner must serve a 10-day Notice to Quit, telling the occupant to vacate or be taken to court.
