Don’t Forget Your Time is of the Essence Language

A type of lawsuit frequently started in the Housing Court is a chronic non-payment holdover. The purpose of this type of lawsuit is to evict a tenant for repeatedly failing to pay his/her rent on time. A tenant – who without justification – has failed to pay his/her rent often enough that a landlord has started several non-payment proceedings will sue to evict claiming that the conduct has risen to such a nuisance level that the tenant should lose the apartment at issue.

These cases are often settled with probationary stipulations in which the tenant agrees to pay his/her rent on time for a probationary term. Failure to pay the rent on time during the probationary term will cause the tenant’s eviction. Further, judges who have been willing to relieve a tenant from the terms of a probationary stipulation have been reversed time and again for doing so.

In drafting the stipulation providing for the probationary term the landlord’s attorney should include language providing that all payments must be made with time being of the essence. This means that slight defaults are not forgiven.

A recent case from the Appellate Term, First Department reversed a decision from the Housing Court in which the Housing Court judge would not forgive a three week default under a stipulation that called for payments to be made in installments. In its short decision explaining the reversal the Appellate Term cited the failure to include time is of the essence language as a reason. The case discussed is 117 West 142 LLC v. Villanueva, 2012 NY Slip Op 51734(U).

The lesson to be learned is that when a landlord’s attorney is drafting a stipulation settling a chronic non-payment holdover or a straight non-payment case that the attorney should include time is of the essence language.