Guarantors and Summary Eviction Proceedings

The guarantor of a lease agreement cannot be made a party to a New York summary eviction proceeding unless the guarantor also has some independent possessory interest in the property.

 

A landlord’s eviction of a tenant in New York State is primarily achieved through a nonpayment or holdover summary proceeding under Article 7 of the Real Property Actions and Proceedings Law (“RPAPL”).   Summary eviction proceedings are special proceedings that enable a landlord petitioner to get a judgment and other relief much quicker than is normally possible under New York law.  This accelerated relief is only available if the matter meets strict statutory criteria as outlined in Article 7 of the RPAPL.

 

The primary relief that Article 7 provides is possession of real property.  Specifically, the statute enables a landlord to regain possession of their property from a tenant.  Whether a landlord is seeking to evict a tenant and regain possession of an apartment, house, commercial space or vacant land, and whether the landlord is seeking unpaid rent or to remedy objectionable conduct on the property – the common element in every case brought under Article 7 is that the landlord must be seeking possession of the property.

 

The remedy of possession is typically not available against a guarantor of a lease, because usually a guarantor is not in possession or does not have a right to possession under the lease agreement.  As a guarantor of performance, they may be liable for damages under the lease agreement in a separate action for money damages, but the summary eviction proceeding is not the proper forum.

 

For the landlord seeking to efficiently attain an eviction and money judgment against both the tenant and the guarantor in one proceeding, this can be a problem.  How can this problem be solved, thereby enabling a landlord to name both the tenant and the guarantor in a summary nonpayment or holdover proceeding?  By simply giving the guarantor the right of possession in the lease agreement, the guarantor then would also be a proper party to the summary proceeding.  By granting the right of possession in the beginning, the landlord would then need the summary eviction proceeding to subsequently take this possessory right away.  If this is the landlord’s goal, naming the guarantor as a tenant or co-obligor on the lease is the most efficient way to make this happen.

 

James E. Clark is a New York real estate attorney.  For more information on the process of evicting a tenant from a property, defending against such an eviction, or making sure a guarantor of a lease becomes fully obligated and subject to a summary eviction proceeding or other options please visit our website at bfclaws.com, call my office at 631-539-8889 during regular business hours or feel free to e-mail me at JClark@bfclaws.com.

Legal disclaimer: IMPORTANT LEGAL NOTICE: This post is not legal advice does not create an attorney-client relationship.  This and all posts on this website are intended as general information and are provided for educational purposes of the public, not any specific individual. If you would like to obtain specific legal advice about this issue, please contact an attorney in your state. Mr. Clark is licensed to practice law in New York.

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