A. Ejectment Actions Ejectment Actions

• Jurisdiction: New York

A. Ejectment Actions

Before 1820, the only legal process that enabled a landlord to regain possession of real property was the common law action for ejectment.¹⁹⁰⁹ In ejectment actions based on nonpayment of rent, landlords had to follow specific procedures. Landlords had to demand the exact amount due¹⁹¹⁰ at the exact premises sought to be recovered¹⁹¹¹ on the exact day the rent became due,¹⁹¹² between sunrise and sunset.¹⁹¹³ In ejectment actions based on tenants' holding over in which the tenancy was for an indefinite period, the landlord was required to give a tenant notice six calendar months before bringing the action.¹⁹¹⁴ These requirements were taken largely from the 17th-century English common law.¹⁹¹⁵ The only flexibility in these archaic ejectment proceedings was a bow to "blue laws": When a tenancy expired on a Sunday, a tenant could leave the premises one day beyond the expiration of the term. ¹⁹¹⁶

Ejectment actions endure in real-property law in a somewhat generalized and partly codified form.¹⁹¹⁷ Unless jurisdiction is specifically granted to some other court by statute, an ejectment action must be brought in Supreme Court. For example, the New York City Civil Court has jurisdiction to hear an ejectment action if the assessed value of the premises is less than $25,000 when the action is commenced.¹⁹¹⁸ Until recently, ejectment actions were more commonplace in Supreme Court and in New York City Civil Court's plenary parts,¹⁹¹⁹ often because improper registration or false information in a petition will bar nonpayment proceedings based on rent default. ¹⁹²⁰

In a summary proceeding, however, "which is not rent based, including holdover proceedings, the recovery of an ancillary money judgment for rent and/or use and occupancy is barred but an award to the petitioner of a final judgment for possession only is not precluded."¹⁹²¹ This has effectively trimmed the majority of ejectment actions from court calendars.

Ejectment is still the preferred action when the occupant has an interest, other than a tenancy that falls outside the tenancies recognized under Article 7 of the RPAPL.¹⁹²² Ejectment also permits recovery of "rents and profits" the occupant collects after the possessory interest terminates. ¹⁹²³

Before 1820, summary-proceeding laws were integrated into ejectment actions, and "month to month tenancies . . . were created by statute."¹⁹²⁴ Accordingly, service of a predicate notice of termination is not always required to commence an ejectment action. For instance, a predicate notice is not necessary when the landlord and tenant had a fixed-term relationship that expired or when the occupant entered the premises without agreement or consent.¹⁹²⁵ Except for specific circumstances, such as reverter or a breach of a condition subsequent,¹⁹²⁶ no statute has modified these common-law rules. In some situations, however, such as breach of an oral tenancy with no fixed term, or situations in which a landlord-tenant relationship still exists between the parties, courts have found that a predicate notice is required.

When notice is required in an ejectment proceeding, some courts in New York City have applied the 30-day notice requirement set forth in RPL § 232-a.¹⁹²⁷ Thus, "well-settled law [from] the Second Department [dictates] that 'when there is a valid landlord-tenant...