Monday, January 09, 2006

Ignorance of the law...

There's a cliche, or perhaps a truism, that states "Ignorance of the law is no excuse." The point behind it is that we're all assumed to know and live within the laws of the land, whether or not we know the specifics.

In the world of landlord/tenant law, where I spend a lot of time, I am routinely amazed by how little actual law is known. An official in an unnamed town recently told one of my acquaintances that a tenant in New York never has the right to withhold rent. This is patently untrue, even thought few tenants ever do it properly pro se. The same gentleman also recently said he thought, if a tenant had not paid the rent, the landlord could put out the tenant's belongings without going to court. Also untrue. A separate official, in a human services agency, routinely tells clients that the landlord has the right to enter the premises at his or her whim, since "it's his building."

This isn't to say it is only the "other side" are the ones who are in the wrong. It's common for tenants I speak with to think that they have 30, 60, or even 90 days to vacate, even after an eviction (the correct answer is 72 hours). Others hear some mishmash of upstate and downstate law through the grapevine and invent their own supposed (and incorrect) laws about how many times a year the landlord can raise the rent. There's also the nearly ubiquitous assumption, ubiquitously incorrect, that a person/family with small children can't be evicted.

Perhaps an additional post, soon, will cover the top ten ll/t myths, with a reference to the case or statute that provides the accurate answer. Any suggestions from the audience would be welcome, of course. In general, though...Real Property Actions and Proceedings Law, Article 7, contains the meat of the eviction law. Practitioners should take a look at it, as the procedures and timelines may be similar to the CPLR, but one can make a jurisdictional error by following CPLR instead of RPAPL rules. High on the list of things to avoid would be going back to your client and telling them you need to start all over again as the action was dismissed as process was served more than 12 days before court or because the three day notice did not correctly itemize alleged arrearages.*

*Of course, while there are numerous cases backing both of those examples, it all depends on if the court is open to such arguments. Recently, in two unnamed courts, I saw one petition served 22 days in advance dismissed for improper service and another served 31 days in advance allowed to proceed. As the internet wags say, "your mileage may vary."


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