ARTICLES

Stays of Warrants in Manufactured Home Evictions

By: S. Scott Perkins, Esq.

With over 78,000 manufactured home sites located in parks throughout New York State1, it is likely that most town, village, or city courts will eventually hear summary eviction proceedings involving manufactured home tenancies. Should the proceeding result in the issuance of a warrant of eviction, Real Property Law 233, commonly known as the “Manufactured Home Tenant’s Bill of Rights,” provides for, among other protections, stays of the execution of such warrants. The stay of these warrants directing the removal of person and property from the manufactured home vary considerably in duration, from 72 hours to ninety days.2 Since there may be uncertainty with both bench and bar as to which stay applies, this article will briefly examine the particular circumstances requiring a stay of the execution of a warrant of eviction in manufactured home park summary proceedings.

Although the delayed execution of a warrant is commonly referred to as a “stay,” there is no suspension of the judicial process commonly associated with a stay of proceedings. Rather, Real Property Law 233 mandates a specific notice requirement and time period before the warrant may be executed. For the purposes of this article, however, the use of the widely accepted term “stay” will refer to the prior notice requirements of the statute.

It should also be noted that not all manufactured home evictions require the extended stay of a warrant. For the stay provisions of Property Law 233 to apply, the eviction must occur in a privately owned manufactured home park consisting of a contiguous parcel of land with three or more manufactured homes for year round living.3 Evictions of manufactured homes on premises located outside manufactured home parks do not qualify for the stays set forth in the statute. Additionally, for the stay to be applicable in a manufactured home park eviction, the tenant must also own their own home or rent from a party other than the park owner or operator.

The following stays of warrants of evictions apply in summary eviction proceedings commenced in regulated manufactured home parks under Real Property Law 233:

Seventy-Two Hour Stay

Irrespective of the grounds upon which the summary proceeding is based, where the tenant rents the manufactured home from the park owner or operator, there is a seventy-two hour stay of the execution of the warrant of eviction.4

Thirty Day Stay

Where the summary eviction proceeding is brought on the grounds of the default in the payment of rent, the warrant is to be stayed a period of thirty days.5 In the event the eviction is based upon grounds that the condition of the premises poses an imminent threat to the health, safety, or welfare of other park tenants, the court may order the warrant stayed upon thirty days notice.6

Ninety Day Stay

Where summary eviction proceedings are brought on any other grounds recognized in the statute (expiration of the term and the holdover of the tenant without the park owner or operator’s consent7, the premises used for illegal purposes8, the manufactured home tenant is in violation of a federal, state, or local law or ordinance deemed detrimental to the safety and welfare of other park residents [not deemed an imminent threat]9, a violation of a park rule or regulation after proper notice10, or there is a change of use of the premises proposed by the manufactured home owner or operator11), a ninety day stay of the warrant is required.12

The stay, or prior notice requirement, is customarily made known to the officer directed to deliver the warrant, and to the tenant to be dispossessed, in two ways. Firstly, the warrant served upon the tenant usually contains language that it is stayed “as provided for by law” with the specific period of time set forth in the warrant. Secondly, the landlord’s counsel typically prepares a separate written notice which accompanies the warrant when served upon the tenant by the officer to whom it is directed. This notice advises the tenant that the warrant of eviction will be executed after the expiration of the period stated in the notice. Once the time period stated in the warrant and the notice has expired, the officer may execute the warrant of eviction and place the landlord in full possession of the premises.

Whether a manufactured home tenant is afforded a seventy-two hour, thirty day, or ninety day stay is dependent upon the nature of the ownership of the home, the grounds upon which the summary eviction proceeding is brought, and whether the condition of the home poses an imminent risk to other tenants. Familiarity with the various stay provisions of Real Property Law 233 in manufactured home park evictions will ensure that the rights of both the park owner/operator and the tenant will be protected.

- S. Scott Perkins, Esq. has an active landlord practice in Saratoga Springs, New York, and has litigated to judgment over 2,000 summary eviction proceedings in the past 27 years. He is a frequent lecturer and contributor in the area of landlord/tenant law. He may be contacted at attorney@perkinslegal.com

Notes:

  1. New York State Division of Housing and Community Renewal, 2007 Manufactured Home Park registration statistics
  2. These stay provisions apply to proceedings where judgment has been rendered and a warrant of eviction has been issued. The statute also requires, in most cases, the service of a demand or notice upon the tenant prior to the commencement of the proceeding. Those preliminary demands or notices are not discussed in this article.
  3. Real Property Law (“RPL”) Section 233 (a) (3)
  4. RPL 233 (d) (4)
  5. RPL 233 (d) (3)
  6. RPL 233 (d) (2)
  7. RPL 233 (b) (1)
  8. RPL 233 (b) (3)
  9. RPL 233 (b) (4)
  10. RPL 233 (b) (5)
  11. RPL 233 (b) (6)
  12. RPL 233 (d) (1)

This article appeared in the Spring 2008 issue of The Magistrate, the journal of the New York State Magistrate's Association.


LANDLORD LIABILITY FOR UNCLAIMED TENANT PROPERTY

By: S. Scott Perkins, Esq.

With a significant number of summary eviction proceedings commenced annually in Saratoga County (there were 375 warrants of eviction effected by the Sheriff in 2006 alone), it is perhaps inevitable that disputes will arise over the legal status of so-called “abandoned” tenant property. Not surprisingly, many landlords are unaware of their legal obligation regarding personal property left at the premises by an evicted tenant. This article will briefly examine the legal status of unclaimed, post-eviction tenant property, a landlord’s duty of care for those belongings, and recommended action to dispose of the property.

When a summary eviction proceeding results in the issuance of a warrant of eviction, the Saratoga County Sheriff is typically directed to remove the tenant and his belongings from the premises. It is not the Sheriff’s policy, however, to either transport from the premises or store the tenant’s personal property. Rather, it is the landlord who bears the responsibility for the collection and storage of unclaimed tenant belongings on the theory that the landlord is an involuntary constructive bailee of such property. Accordingly, the law imposes upon the landlord as a gratuitous bailee a duty of care for the proper treatment of tenant property. Because the landlord has no bailment contract with the tenant and the bailment is clearly not for the benefit of the landlord, the landlord only owes the tenant a minimal or slight duty of care for the tenant’s personal property until the property is returned to the tenant or the tenant relinquishes title.

Contrary to popular belief, the property of an evicted tenant is not considered “abandoned” simply because the property is left at the premises at the time the warrant is effected. Whether property is abandoned depends upon the intent of the owner. Unless there is a clear manifestation of intent by the tenant to discard or abandon the property (ie. placing the property in a trash receptacle, indicating to the property manager that the property is being thrown out, etc.), title to the property remains vested with the tenant. Since the landlord involuntarily comes into possession of post-eviction property owned by the tenant, the property may not be retained by the landlord, discarded, or neglected. The landlord under those circumstances has a duty of care to the tenant, albeit slight, for the proper collection, transportation, storage, and eventual disposition of the tenant’s property. The landlord will be liable if there is gross negligence resulting in the damage or destruction of the property in his possession. Gross negligence could include leaving tenant property outside and exposed to the elements, recklessly handling the property during transportation, or discarding the property altogether. Therefore, a landlord risks liability and a potential claim for damages if a minimal degree of care is not provided while the property is in the landlord’s possession.

To avoid post-eviction property claims, landlords would be well advised to plan for the possibility of unclaimed tenant property at the conclusion of a tenancy. For instance, the landlord may wish to state in any written lease or other document the specific procedure to be utilized in the event there is unclaimed personal property, either following eviction or after a voluntary surrender of the premises. The writing should include a procedure for an inventory of the property, notice to the tenant as to how the property may be claimed, the time period within which the property may be claimed, and notice that the property shall be deemed abandoned should the tenant fail to take possession of the property within a specified period of time. The writing should also state that abandoned property shall be disposed of through private sale if the tenant fails to arrange for the timely removal of the property after the tenant vacates the premises.

Without a specific lease provision, reasonable notice to the tenant should be provided prior to any disposition of the property. It is advisable that the landlord give at least 30 days’ written notice to the tenant of the tenant’s right to claim and remove any personal property in the landlord’s possession or the property will be deemed abandoned. If the tenant fails to remove the property within the specified time period, the landlord may consider the property abandoned and discard same; however, it is highly recommended that the landlord dispose of the property by means of a private sale by published notice, especially where the property has substantial value. In such case, a final written notice to the tenant should be provided, indicating the date and time when the property will be offered for sale. The landlord should then publish a legal notice of the sale of abandoned tenant property, identifying the property to be sold, the place and time of sale, and terms of sale. Once the sale is conducted, proceeds from the sale may be applied against any judgment the landlord may have previously obtained against the tenant. Additionally, costs of the sale may be deducted from sale proceeds, with the balance, if any, to be paid to the tenant.

An alternative to the landlord’s storage of unclaimed tenant belongings is the rental of a commercial self-storage unit for a fixed term which should be, at a minimum, 30 days, with notice to the tenant that the property may be claimed at the facility. Should the tenant fail to claim the property, the storage facility has the right to assert a storage lien pursuant to Lien Law Section 182, and to dispose of the property in accordance with that statute.

When a landlord involuntarily comes into possession of the personal property of an evicted or vacated tenant, ownership of the property nevertheless remains with the tenant unless there is clear evidence of the tenant’s intent to abandon the property. The landlord has a duty, although slight, to care for the property until claimed and will be liable to the tenant if the property is converted by the landlord, summarily discarded, or if there is gross negligence in failing to protect the property. If, after reasonable notice, the tenant fails to claim and take possession of the property, the landlord may deem the property abandoned and discard the belongings or, preferably, dispose of them by a duly noticed private sale. Instituting reasonable procedures for the care, storage, and disposition of tenant property will greatly reduce the likelihood of a post-eviction tenant claim.

- S. Scott Perkins, Esq. is a principal with Perkins and Perkins, Saratoga Springs. He has an active landlord/tenant practice and has litigated to judgment over 1,500 summary eviction proceedings.

This article appeared in the June 2007 issue of the Saratoga County Bar Association’s Law Notes

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