Unlawful evictions (RPAPL section 768)

New York’s Housing Stability and Tenant Protection Act of 2019 created new protections for tenants. Under a new provision, it is a class A misdemeanor to do either of the following (Real Property Actions and Proceedings Law (RPAPL) section 768):

  • to evict an occupant from their home without a court order
  • to fail to restore an occupant who was evicted without a court order

Under the law, unlawful evictions are criminal matters. Law enforcement should play an active role in upholding this law. We have developed this guidance to help members of New York state law enforcement handle claims of tenants and other persons being illegally removed from their homes.

The ultimate goal of any intervention by law enforcement should be to return a tenant to their home, if legally warranted. Law enforcement’s swift action will help ensure that people are not removed from their homes without due process.

In responding to a call about an unlawful eviction, law enforcement officers must assess the following:

Is the complainant a person entitled to protections under the law?

Law enforcement should determine if the occupant lawfully entered the dwelling unit. If so, law enforcement should determine whether the occupant has a lease or has been in occupancy for more than 30 days.

Under RPAPL section 768, an occupant is protected from unlawful evictions if they fulfill either of the following conditions: 

  • They occupy a dwelling unit pursuant to a written or oral lease.
  • They have lawfully occupied a dwelling unit for at least 30 days. In New York City, the law also protects any occupant who occupies a dwelling unit within a hotel subject to rent stabilization if that occupant has resided in the dwelling unit for less than 30 days and has requested a lease under the provisions of the rent-stabilization laws.

To assess whether a complainant is protected by the law, law enforcement officers should determine as much of the following about the occupant as possible: 

  • how they gained possession of the dwelling
  • whether they have a written or oral lease, or moved in at least 30 days ago

How the occupant gained possession

Lawful occupants are protected from unlawful evictions under RPAPL 768. Other than squatters or trespassers, almost all other occupants will be considered lawful if they received permission to enter the dwelling unit from the landlord, owner, or other person who is authorized to allow them in (e.g. managing agent, tenant, or employer). 

In addition to RPAPL 768, courts have ruled that other lawful occupants (such as those who have been in occupancy for less than 30 days) may not be removed by force. These occupants can be removed only as long as the removal is not forcible and does not breach the peace. However, even if the occupant is removed without force, they cannot be ket out with force or with any action that would breach the peace. Unlawful occupants, such as trespassers and squatters, are not entitled to be restored to possession if evicted without court order; other penal laws, such as assault, may apply to the situation.

Examples

  • A tenant has a guest who has been in the apartment for only 10 days. While the guest is out getting groceries, the tenant changes the locks. This removal is legal because it was not forceful and did not breach the peace.
  • When the guest returns, it would be illegal for the tenant to keep the guest out with force or in any way that breaches the peace.  

Occupants who occupy a dwelling unit under a written or oral lease 

Leases need not be in writing to warrant protection under the law. Oral agreements to occupy premises for a month or longer trigger the law’s protections. Generally, people occupying a premise under an agreement will have proof of rent payments as evidence of the agreement. Text messages, emails, or other communications referring to the agreement may also be sufficient.

Example

A landlord and tenant enter into an oral agreement for a month-to-month rental. After 15 days, the landlord locks the tenant out of their apartment. This tenant has been unlawfully evicted.

Occupants who have lawfully occupied a dwelling unit for at least 30 days

In addition to tenants who occupy their premises under a current oral or written lease, anyone who has lawfully occupied premises for 30 days is entitled to protection from unlawful eviction, including:

  • tenants whose leases have expired
  • family members who have been in the dwelling unit for at least 30 days
  • roommates or other licensees of tenants and occupants who have been in the dwelling unit for at least 30 days (a licensee is someone who has received permission to use the dwelling, but is not a tenant)
  • workers who have been provided housing as a part of their job

Examples

  • A tenant and his roommate have been living together in an apartment for one year. The tenant moves out of the apartment and leaves his roommate behind. Instead of going to court, the landlord locks the roommate out of the apartment. The roommate has been unlawfully evicted.
  • The owner of a single-family home allows his nephew and his nephew’s girlfriend to live in his basement. The basement does not have a kitchen or a separate entrance. After six months, the owner gets into a fight with his nephew and locks both the nephew and girlfriend out of the home. The nephew and girlfriend have been unlawfully evicted.
  • A tenant gets a roommate but does not inform the landlord. The landlord tells the tenant that they do not want the tenant to have a roommate. The landlord throws the roommate’s belongings into the street. The roommate has been unlawfully evicted.
  • A worker is provided a dwelling space as part of their work compensation. After six months, the worker is fired. Their employer throws out the worker’s belongings and changes the locks to the space. The worker has been unlawfully evicted.

How to determine if a complainant is covered by the law

If the occupant’s lawful occupancy is disputed, a law enforcement officer can ask for any of the following proof:

  • written lease
  • communications between the parties indicating an intent to create a rental agreement
  • proof of rent payments
  • utility bills proving occupancy
  • mail with the dwelling unit’s address that is dated more than 30 days earlier
  • paystubs or employment agreement
  • other documents that show that the occupant has been living in the dwelling unit

Keep in mind that many of these documents may be inside the dwelling unit: If necessary, law enforcement should help the occupant retrieve them. In addition, many people do not have traditional documentation. These issues should not bar them from receiving the same protections as occupants with more-traditional living situations.

Who can be arrested for illegal eviction?

RPAPL 768 does not limit criminal liability to only owners or landlords: “Any person who intentionally violates or assists in the violation of any of the provisions of [RPAPL 768] shall be guilty of a class A misdemeanor.”

Therefore, the owner or landlord or any of their agents (e.g. managing agent or friend) can be liable of a crime if they engage in any of the activities considered an illegal eviction. 

In addition, a tenant who allows another person (such as a roommate, family member, or guest) to live with them, and who then seeks to remove the other occupant in violation of the terms of RPAPL 768, could be arrested for an illegal eviction.

However, be aware that the person who is removing the occupant may be doing so for safety concerns, such as locking out an abuser. For this reason, law enforcement should assess whether domestic or intimate partner violence is involved and follow department protocol for such situations. For further information, visit the New York State Office for the Prevention of Domestic Violence. 

Is the dwelling covered by the law?

Most residential buildings are covered by the law

Section 4 of the Multiple Dwelling Law defines a dwelling as “any building or structure or portion thereof which is occupied in whole or in part as the home, residence or sleeping place of one or more human beings.”

A dwelling unit is any portion of a dwelling. This definition can apply to an apartment, a basement, a room, or just a bed.

In contrast, a commercial space would not be covered by RPAPL 768 unless it is being used as a residence. Hospitals, monasteries, and public institutions are not considered dwellings.

What acts violate the law?

An unlawful eviction can take many forms: Someone can use force, such as physically throwing an occupant out, or use passive efforts, like cutting essential services or changing the locks.

Refusing to restore an occupant after an unlawful eviction is also a criminal act.

Under RPAPL 768, it is an unlawful eviction if a person evicts or attempts to evict a person by:

  • using or threatening to use force
  • interrupting or discontinuing essential services (i.e. heat, water, or electricity)
  • removing an occupant’s possessions from the dwelling unit
  • removing the door at the entrance to the dwelling unit
  • removing, plugging, or otherwise making the entrance-door lock useless
  • changing the lock on an entrance door without giving the occupant a key
  • acting in any other way that prevents or is intended to prevent the occupant from lawful occupancy of the dwelling unit, interferes or is intended to interfere with the occupant’s use and occupancy of the dwelling unit, or causes the occupant to vacate. This kind of action includes:
  • repeatedly calling the occupant at all hours
  • repeatedly banging on the doors
  • yelling at the occupant
  • repeatedly demanding that the occupant get out

If an occupant of a dwelling unit has been unlawfully evicted, the law also requires the owner of the dwelling unit to take all reasonable and necessary actions to restore the occupant to their dwelling unit.

The owner can also provide the occupant another livable unit within the dwelling. 

If the occupant has been illegally evicted and has requested to return to their dwelling unit, the owner will be criminally liable for failing to restore the occupant or failing to provide another dwelling unit if either:

  • The owner committed the unlawful eviction or knew, or had reason to know, of the unlawful eviction.
  • The occupant’s request came within seven days of the unlawful eviction regardless of what the owner, or the owner’s representative, knew or should have known.

Each violation of the law is a separate and distinct crime. For instance, there would be three charges of unlawful eviction if an owner changes the locks of an apartment, threatens the occupant, and then refuses to restore the occupant after their request to be restored.

In addition, an owner is also subject to civil penalties of between $1,000 to $10,000 per violation. The owner incurs additional penalties of up to $100 per day, for a maximum of six months, until the occupant is restored to the dwelling unit.

Evictions that are pursuant to court order or are through a government order to vacate are considered lawful evictions and are not covered by the RPAPL 768. Law enforcement officers should not be involved with executing a warrant of eviction by a marshal, sheriff, or city constable. Instead, law enforcement should be available only to help keep the peace.

Conclusion

Law enforcement officers should use this new law, when legally warranted, to help restore tenants and occupants to occupancy. This includes workers in employment-related housing. Law enforcement officers should also become familiar with local resources for occupants who cannot be restored to occupancy due to the condition of the property . If people require further assistance, we encourage law enforcement to direct them to their local court.

The Office of the New York State Attorney General is available to assist you and other local law enforcement departments in developing guidance for their officers when encountering unlawful evictions.