Evicting a Commercial Tenant in New York

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 What is a Commercial Tenant?

A commercial tenant is an individual or entity that rents real estate specifically for the purposes of doing business and/or conducting other commercial activities. For example, commercial tenants tend to rent property in certain locations, such as malls, office space, and restaurants. This is in contrast to residential tenants who primarily rent out places to reside in (e.g., apartments, houses, etc.).

In general, businesses and organizations make up the majority of commercial tenants. Since businesses and organizations are viewed as being more sophisticated than their residential counterparts, commercial tenants receive fewer legal rights and protections under the law. Thus, commercial tenants must strive to be extra careful when it comes to renting property from a commercial landlord.

What is Commercial Tenant Eviction, and How are Commercial Tenants Protected in New York?

A commercial tenant eviction refers to a legal procedure wherein a court may order the removal of a tenant from a commercial property after a landlord submits a request. The landlord must have a specific and justifiable reason as to why the tenant needs to be removed (i.e., evicted) from the property. 

An eviction may arise for a number of reasons, such as if a commercial tenant refused or stopped paying their rent. With the exception of not paying rent, the reasons to evict a commercial tenant may vary based on the laws of a particular jurisdiction and on the terms of an individual commercial contract. 

Unlike many other states, the protections provided for commercial tenants under New York state commercial lease law are much stronger. Some of those protections include: 

  • The right to be free from discrimination;
  • The right to be free from harassment by a landlord;
  • The right to be free from acts that produce waste or cause urban blight;
  • Protection against recurring frivolous legal actions; and/or
  • Protection against repeated and unnecessary acts that interfere with a commercial tenant’s business.

Are there any Defenses under New York Commercial Tenant Law?

In general, the majority of defenses and/or rights that a commercial tenant may have will be provided in the terms of their commercial lease agreement. Specifically, in New York, the law assumes that if a right or obligation is not explicitly mentioned in the commercial contract, then it most likely will not be enforceable. Thus, despite having stronger protections than other states, New York commercial tenants are still limited in their defenses. 

Some defenses that commercial tenants might be able to raise under New York commercial tenant law include the following:

  • Lack of proper notice: If a landlord fails to notify the commercial tenant (e.g., three-day notice) about an eviction or does not allow them three full days to remedy the issue, then the tenant may be able to raise this as a defense against the eviction. Courts also prefer that a landlord exhaust all other remedies before filing for eviction.
  • Improper eviction: If a commercial landlord attempts to forcibly remove a tenant using their own devices or if a landlord fails to follow the proper legal requirements for evictions in New York state, then the tenant may argue that the landlord attempted to improperly evict them as a defense. For instance, a landlord who wants to evict a commercial tenant in New York, must provide specific reasons, such as:
    • Failing to pay rent for the allotted or an extended period;
    • Creating a public nuisance;
    • Holding over long after a lease has expired; and
    • Violating the terms of the commercial lease agreement.
  • Retaliatory eviction: Though this defense is not as common in actions for commercial tenant evictions as it is in actions for residential property evictions, commercial tenants may still raise retaliatory eviction as a defense. This can happen if they can prove that a landlord is trying to evict them because they rightfully complained about issues that affect their property (e.g., no heat in a building during the winter).
  • Landlord in breach: As previously mentioned, the commercial lease agreement is the controlling document in an eviction proceeding. As such, a commercial tenant may be able to avoid being evicted if they can prove that the landlord breached a condition of their commercial lease agreement.
  • Landlord interferes with commercial property: New York has specifically made it a crime for a landlord to intentionally interfere with services that are deemed to be of “proper and customary” use in a particular building. For instance, a commercial tenant may refuse to pay rent if their business relies on a working freight elevator and that freight elevator is out of order, despite repeated requests to have it repaired.
  • Landlord discriminates against tenant: The “Fair Housing Act” is a federal law that makes it illegal to discriminate against a commercial or residential tenant due to their race, origin, gender, disability, and so on. Thus, if a landlord attempts to evict a commercial tenant based on discriminatory reasons, then the tenant can raise the protections afforded by this Act as a defense.

Are there any Remedies for a Commercial Tenant Eviction Violation?

The remedies for a commercial tenant eviction violation will depend on a number of things. This include a state’s eviction laws, the facts of a specific scenario, the type of defense that was raised, and whether or not that defense was successful. 

Some possible remedies that a commercial tenant may receive for an eviction violation include monetary damages, legal permission to remain on the property, and/or an extension on the time they have to fix one of their own violations. A commercial lease may also contain provisions that dictate when other remedies may be available in certain situations.

Additionally, several of the rights that commercial tenants enjoy may give them the opportunity to obtain a remedy as well like the right to have various items repaired (e.g., electrical connections, water supply, etc.), and the right to cancel or receive a rent reduction if an entire commercial property goes out of business (i.e., “going dark” rights). 

Do I Need an Attorney for Help with a New York Commercial Tenant Eviction Issue?

Commercial real estate issues fall under an extremely detailed and complex area of the law that often requires the help of a legal expert in order to resolve them. In particular, commercial landlord-tenant matters tend to be even more complicated than a standard residential case due to the fact that commercial tenants have almost no legal rights or protections.

Therefore, if you have any questions or are involved in a matter concerning commercial tenant evictions, it may be in your best interest to contact a local New York landlord tenant lawyers for further legal guidance. A real estate lawyer who has experience with commercial evictions will already be familiar with the applicable laws and procedures.

In addition, your lawyer will be able to discuss how the laws may affect your case and can inform you of your rights as a commercial landlord or tenant. Your lawyer can also review the terms of your commercial lease agreement, identify any clauses in the lease that may operate in your favor, and provide advice on the next steps you should take.

Finally, if you need to appear in court for a particular issue, your lawyer can represent you and argue on your behalf. Alternatively, if you are a commercial landlord and you want to remove a commercial tenant for not paying rent, your lawyer can assist you in navigating the eviction process and can ensure that you are complying with the relevant state laws as well.

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