Ask Sam: Can my landlord evict me if my spouse just died?

By Himmelstein McConnell Gribben & Joseph LLP | November 11, 2015 - 12:59PM

Dear Sam: Can I get any kind of lenience from a landlord if my spouse has recently passed away? My husband died recently, and while I was late on rent for September and haven't yet paid for October, I just received notice for court proceedings for non-payment in August, even though I paid rent that month. How can I save my apartment?

Though your loss isn't legal grounds for a break on rent, don't let your landlord bully you into thinking you have to leave immediately, says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations.

"A temporary financial hardship is not a legal defense or a reason to not pay rent," says Himmelstein. That said, the eviction and housing court process are inevitably somewhat slow with lots of built in delays, meaning you'll have some time to get your finances in order and figure out a new payment plan if need be. "The first thing to remember is that if you’re sued for non-payment of rent, you can’t be evicted unless you ultimately don’t pay what you owe," says Himmelstein. "If you come up with the money, then you won't be evicted."

On top of that, since it sounds like the landlord is bringing the case for a month when you did, in fact, pay your rent in full, it's possible the case could be dismissed altogether (although court will often allow landlords to amend their petitions to include the current rent if you've defaulted on payments in the interim). If you do end up going to court, the most likely outcome is settling with the landlord, with some kind of new payment plan in place. "I would say the overwhelming majority of landlord-tenant non-payment tenant cases get settled, and the landlord agrees to a payment plan," says Himmelstein, who adds that the city's courts put significant pressure on landlords to agree to settlements rather than evict. "It's usually structured so that you pay a certain amount when you sign the agreement, along with the rest of the outstanding balance in addition to the future monthly rent over the next several months."

If find yourself unable to keep up with the new payment schedule, there are still a few stopgaps before you get to actual eviction. Generally, says Himmelstein, as a part of the settlement , the landlord is given what's known as a "final judgment of possession," but often there's first a "stay of execution," or a delay to give you a chance to make the payments. Failing that, the landlord can start making real moves to evict you, but they're still required to give you proper notice, Himmelstein notes, at which point you can request something called an "Order to Show Cause" (more details on that here), which gives you the opportunity to explain your situation, and perhaps convince the landlord to enter into a new agreement.

"Very often, even if you don't stick to the letter of your original agreement, judges will give tenants extensions," says Himmelstein. "But ultimately, if you don’t pay the rent you will be evicted."

Ask Sam: What kind of problems qualify me for a rent abatement? (sponsored)

What happens to a rent-stabilized tenants when the landlord dies?

5 shady landlord harassment tactics—and why you shouldn't fall for them

See all Ask a Renters' Rights Lawyer

Sam Himmelstein, Esq. represents NYC tenants and tenant associations in disputes over evictions, rent increases, rental conversions, rent stabilization law, lease buyouts, and many other issues. He is a partner at Himmelstein, McConnell, Gribben, Donoghue & Joseph in Manhattan. To submit a question for this column, click here. To ask about a legal consultation, email Sam or call (212) 349-3000.

Brick Underground articles occasionally include the expertise of, or information about, advertising partners when relevant to the story. We will never promote an advertiser's product without making the relationship clear to our readers.