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Lockport City Court, Niagara County

Tenant's Rights

Information Distributed By:

Niagara County Legal Aid Society
775 Third Street - PO Box 844
Niagara Falls, NY 14302
Phone: 716-284-8831

Your Security Deposit
When A Landlord Does Not Repair
Proper Notice
Utility Shut-offs and Breakdowns

When you rent an apartment, the landlord will often want a security deposit. Your landlord will hold your security deposit until you move out to pay for any damage you might cause to your apartment, or to pay any rent you might owe.

Before you move into an apartment, you should carefully inspect the condition of the apartment with your landlord and a third person (as a witness). Use a checklist to note any problems that you see. For example, if you see a hole in the wall or a cracked window, mark it down. If possible, take photos. Ask your landlord to sign the checklist. These steps will protect you later, when you move out, so your landlord does not keep your security deposit to pay for damage that you did not cause.

before moving out, you should also ask a witness to inspect the apartment with you and again, if possible, take photos.

You can make up your own checklist to use. After each item, leave enough room to write your remarks. If possible, make two columns, one for the move-in inspection, the other for the move-out inspection. Include the following items:

  • GENERAL: doors, locks, windows, window screens, furnace, basement, carpets, drapes, window shades, entryway, yard.
  • KITCHEN: refrigerator, stove, oven, sink, counters, cupboards and drawers, floor, walls, plumbing.
  • EACH BEDROOM: closet, floor, walls, ceiling, light fixtures.
  • BATHROOM: sink, toilet, tub, shower, tiles, plumbing, floor, walls, fixtures and towel bars, cabinets, mirror.

Finally, you, the landlord, and any witness should sign and date the list after both the move-in and move-out inspection.

The security deposit is usually equal to one month’s rent. This is paid to the landlord in addition to your first month’s rent. It is a good idea to pay the security deposit by a separate personal check or by a bank money order. If you pay by check, you should write ‘for security” on the check or money order. If you pay cash, get a receipt for the security deposit. This receipt should state specifically that it is a receipt for the deposit. Save your canceled check or the carbon copy of your money order or the receipt that you received from your landlord. This is proof that you paid the security deposit.

No. Your landlord is not required to use your security deposit for payment of rent However, your landlord can agree to let you use your security deposit for one month’s rent. If this occurs, ask your landlord to give you a paid-in-full receipt for that month. If your landlord does not agree to this, however, your failure to pay rent (even if your landlord has one month extra security) may result in your being evicted before you are ready.

If your apartment building has six or more apartments, your landlord must place your security deposit in a separate savings account and notify you in writing of the name and address of the bank. The landlord may keep 1% of the interest on that account, but the rest belongs to you. The landlord does not have to give you the interest each year, but must, at the very least, return the interest with the security deposit when you move.

If there are fewer than six rental units in the building where you live, the landlord is only required to put the security in a separate bank account. This account does not have to pay interest. But if it does, the interest is again divided: 1% for the landlord and the rest for you.

1. If you cause damage to your apartment, the landlord may keep some or all of the security deposit to pay for the reasonable cost of the repairs. The landlord should show you the receipts for the repairs and then return to you the amount of the security deposit that he did not need to pay for the repairs.

2. If you owe rent, the landlord can keep all or part of the deposit. But he should return any unused amount.

Your landlord does not have to return your security deposit before you move out, or on the day that you move. The landlord has a “reasonable time” to inspect the property to see whether you have caused any damage. If you think that your landlord will claim that you have damaged the apartment and not return the deposit, it is very important for you to bring a witness to carefully inspect the condition of the apartment. Also, be sure to return the key promptly.

You should ask your landlord to inspect the property with you right before you move. If he will not inspect it with you, and you have witnesses that the apartment was in good condition when you left, you should win if you sue your landlord for the deposit because the damage could have happened after you moved out.

You are not entitled to get your security deposit back from your landlord until you actually move out of the apartment. If the landlord refuses to return the security deposit after you have left the apartment or house, you can sue him in Small Claims Court. You should go to Small Claims court if:

1. Your landlord claims that you caused the damage.

2. If the landlord claims that you owe back rent and you feel that all of the rent money has been paid.

Going to Small Claims Court is a simple procedure in which you can sue another person without having a lawyer represent you. If your landlord is refusing to return the security deposit because he or she claims that you damaged the apartment, you should bring witnesses to court to prove that you did not cause the damage. If your landlord refuses to return the security deposit because he claims that you owe back rent, you should bring with you to court copies of rent receipts, money orders and canceled checks that you used to pay your rent.

An eviction is a court action that a landlord must use to remove a tenant from a rented apartment or house. If you have lived in a rooming house or hotel for at least 30 days, the landlord must use the eviction process to make you move.

An eviction case is started when the landlord serves the tenant with 2 papers, the “Notice of Petition” (tells the time, date, and place of the court hearing) and the “Petition” (tells the reason the landlord wants to evict). You must be served with these papers at least 5 days before the court date.

Just because a landlord starts an eviction action doesn’t mean that the landlord will win! Tenants have certain rights, and there are several defenses to an eviction action.

NO! The landlord must go to court, must win the case, and must get a court order, called the “Warrant of Eviction”. This is true even if you owe rent or your lease is up.

It is a criminal violation for a landlord to illegally evict you by:

  • changing the locks,
  • padlocking the doors,
  • taking out your furniture or other property,
  • turning off the electricity or water,
  • removing the door,
  • doing anything else that keeps you out of your house or apartment (Real Property Law 235).

If your landlord tries any of these things, call the police. In Niagara Falls call 286-4711. Tell them that the landlord does not have an eviction warrant, but has tried to throw you out anyway.

If you are told, “Sorry, that’s a civil matter,” don’t give up. Ask for the officer’s name and badge number. Then ask to speak to the officer’s supervisor. The police have been trained on illegal evictions and have the duty to help you.

If the police can’t take care of the problem, call a lawyer at once. If the landlord won’t let you back in, it is possible to get 1) a court order telling the landlord what he must do, and 2) triple damages for any losses or cost caused by the illegal action.

Written Lease: if you have a written lease, you can be evicted only if:

  • the lease is up, or
  • you owe rent, or
  • you have seriously violated the terms of your lease.

Your landlord must prove in court that any of these are true.

Month-to-month Tenant: if you don’t have a written lease, and pay rent on a month-to-month basis, you can be evicted only if:

  • you owe rent, or
  • you were given a month’s notice to move out. (For more information, see our leaflet “Proper Notice”).

Again, the landlord will say, “I just want the tenant out.” That is not a legal reason to evict. The landlord must prove one of the reasons listed above.

If you live in public housing or subsidized housing (also called “HUD housing”) or Section 8 housing, there are special rules on evictions. See our leaflets on these programs, and be sure to call a lawyer if you get court papers.

Possible defenses depend on the reason for the eviction action. The reason should be listed on the Petition.

“Non-payment” case? If any of these apply, tell the judge:

1. You paid the rent. Bring proof (receipt or witness) to court.

2. You offered the rent, but the landlord refused to take it. Bring the money to court.

3. You are holding back the rent because the landlord won’t make repairs. (See our flyer “When a Landlord Won’t Repair” before withholding rent.) Bring a copy of the housing inspector’s report, photos, and other proof.

4. The welfare department is holding back the rent because the landlord won’t make repairs. Bring a copy of the notices from your worker.

“Holdover” case (landlord says lease is up)? Tell the judge if any of these apply:

1. You are a month-to-month tenant, but were never given a month’s notice.

2. The landlord gave you proper notice, but did it because you complained about poor conditions or called the housing inspectors (see our flyer “Retaliation” for more information). Again, bring a copy of the housing inspector’s report to court.

If you are served with eviction papers, GO TO COURT. Even if you agree with what the landlord says you can still ask the judge for extra time to move. If you don’t go to court, you will get a 72 hour notice (see page 6) right away.

Your court papers will tell you the location of the court and the time you must appear. In Niagara Falls, eviction cases are held in the Public Safety Building, 520 Hyde Park Boulevard, on the second floor at 9:00 a.m. In North Tonawanda, cases are held in City Hall, 216 Payne Avenue, at 9:30 a.m. Eviction cases in Lockport are held in the Municipal Building, 1 Locks Plaza, at 9:00 a.m. If you don’t live in the city, check your court papers for this information.

BE ON TIME! Better yet, be early. Your case may be the last one called, or it may be the first one. If you are even a few minutes late, the judge may have already called your case and made a decision.

When your case is called, answer “Here” loud and clear. Go to the front to the courtroom. When the judge asks for your side of the story, briefly tell the facts of your case and any defenses. Be polite and calm, and don’t talk while someone else is talking. (This can be hard when you are nervous or angry, but it helps your case.) Show the judge any proof you brought to court with you.
The judge may decide the case right then, or may tell you to come back another day for a hearing.

If the judge agrees with you, the case will be dismissed. You win, and do not need to move out.

If the judge agrees with the landlord, you will lose, and must move. You may also owe the landlord money. The judge gives the landlord a “warrant of eviction”, which is the court order that allows you to be put out if you don’t move on your own. The judge decides if the warrant can be issued right away, or if it will be “stayed” for a while.

On the day that the warrant can be issued, you will be given a 72 hour (3 day) notice by a city marshal or county sheriff. This is your warning that you have 3 days to move.

The marshal comes back after the 72 hours are up, unless it is a Sunday or holiday. (Some marshals will do evictions on Saturdays. Check with the marshal who gives you the notice to be sure.) If you have not moved out, the marshal can remove your property and change the locks.

Problems with getting repairs done are probably the most common complaint by tenants. If you follow the advice given here, you have a better chance of getting the needed work done. Also, you will protect yourself in case there is trouble later on with the landlord, and the case ends up in court.

New York has a law called the “Warranty of Habitability” (Real Property Law 235-b). “Warranty” means promise. “Habitability” means that a rental unit is a safe and decent place to live. Any landlord who rents you a place to live must keep it in safe and decent condition, and must do needed repairs. This is true whether or not you have a written lease.

Further, YOU CANNOT GIVE UP THIS RIGHT. Even if you signed a lease that says you did, the courts will not enforce that agreement.

When you move in, be sure to get the landlord’s name, address, and phone number. Find out who you should contact for repairs.
If there is a problem, tell the landlord. Ask when you can expect the work to be done. Always put all requests for repairs in writing, even if you spoke to the landlord by phone or in person. Be sure to put your name, address, and date on the letter. Be sure to keep a copy of your letter.

Don’t be afraid to send several letters to your landlord, always keeping copies. Even if the repairs are not done, you will have proof that the landlord knew about the problem.

If your landlord does not fix the problem, the next step is to call the Niagara Falls Housing Inspectors at 286-4450 or the Niagara County Health Department at 439-7444.

NOTE: Many tenants are worried about calling the inspectors. They are afraid that their landlord will get mad or try to evict them. It is ILLEGAL for the landlord to get back at you for complaining about your conditions.

Set up a time and date to meet the inspector. Be home when the inspector comes so you can point out the problems. If the inspector finds violations of the city’s housing code, he or she will send a letter to your landlord. It lists all code violations, and tells the landlord how soon the problems must be fixed.

You will be not be given a copy of the letter, but your attorney can obtain a copy.

Some landlords will obey the city’s order. Others will ignore them. Even if you do not think that your landlord will do the repairs, get an inspection done anyway. It is the best proof that there are problems that need to be fixed.

If the needed repairs is something simple, you may want to do the work yourself (or pay someone else to do it). You pay for the work, and then deduct the cost from the next month’s rent payment. If you do this, be sure to:

1. Write the landlord again, telling him that if the work is
not done, you plan to do it and deduct the cost. Keep a copy of this letter.

2. Get receipts for all parts or labor.

3. The costs of all repairs must be reasonable.

4. When you pay the next month’s rent, include a letter that says the work you did, why, how much it cost-which is the amount you will deduct. Send copies of the reaccepts; keep the original.

If the landlord tries to evict you for not paying all the rent, you will have good records of what you did, and why.

If there are very serious problems that effect health and safety, you may want to withhold the rent. TALK TO A LAWYER BEFORE YOU DO THIS. The landlord will probably try to evict you, so you want to protect yourself as much as possible.

These steps must be followed for rent withholding to work:

1. Send a letter to the landlord (keep a copy), saying that no more rent will be paid until the repairs are done.

2. Gather proof of the problem and the landlord’s failure to fix them. PROOF: copies of earlier letters to the landlord, a copy of the letter from the housing or health inspectors, photos, if possible, witnesses who have seen the problems.

Rent withholding means just that: holding the rent, not spending it. If possible, put the rent money in the bank or a lawyer’s trust account. If the case goes to court and you do not have the money, you will lose, even though there are code violations.

If you get public assistance (welfare) and your rent is on voucher, will need to ask your worker to take the rent off voucher before you can withhold. This must be done by the 15th of the month. THE PROBLEMS CANNOT BE CAUSED BY YOU, YOUR FAMILY, OR GUESTS.

Some landlords will do the repairs if you withhold rent but, many others will just start an eviction action, saying you did not pay the rent.

If you cannot get a lawyer to go to court with you, you will need to tell the judge that you have withheld the rent because of poor conditions in your apartment. You should also say that you have proof of the problems, and that you do have the money put aside.

The judge should hold a hearing to find out the facts of the case. Under the Warranty of Habitability law (see pay 1), you are only required to pay as much rent as the place is worth. The judge decides whether the landlord has failed to keep your house or apartment in good shape, and how much rent the landlord has the right to charge you. You must then pay whatever rent the judge say you owe. The rest of the rent money goes back to you.

If the hearing is not held right away, the judge may tell you to deposit the rent money with the court. For more information on the eviction process, see our leaflet “EVICTIONS”.

Another law can also help you get repairs done: Social Services Law 143-b. If the Welfare Office learns that there are very serious problems at your apartment, they have the right to hold back the rent share from your public assistance grant. By law, the landlord cannot evict you because of this.

If the Welfare Office is holding back their share, you can hold back your share also. But again, you must hold that money, and not spend it. Example: the rent is $250.00. Welfare pays $200.00; you pay $50.00. You can withhold the $50.00.

If the entire rent is on voucher, you will get a bigger check while Welfare is withholding. Example: Welfare pays the landlord the full rent of $250.00. When they hold back their share, they will only hold back $200.00. The extra $50.00 will be sent to you. As before, hold the extra money. DO NOT SPEND IT. TALK TO A LAWYER ABOUT WHAT TO DO WITH THE MONEY YOU ARE HOLDING BACK ON YOUR OWN.

In some cases, the law works very well. Both landlords and judges seem to take Welfare’s withholding more seriously than when tenants withhold all the rent on their own. However, it can the Welfare Office two - three months to withhold the rent after they first learn that there are serious problems. Also, if the landlord fixes the problems within three months, Welfare will pay him all the rent. If the tenant had withheld rent under the Warranty of Habitability Law, some of this money might have gone to the tenant instead of the landlord.

It can be hard to decide which law will work best in your case. Try to talk to a lawyer about it.


Your landlord cannot just raise the rent or tell you to move at any time he wants to. He has to follow certain rules. If you signed a written lease, one set of rules applies. If you do not have a written lease, but just rent on a month-to-month basis, then another set of rules applies.

The purpose of a written lease is to make it clear what the tenant and landlord expect from each other how long the tenant will live there, the rent, who pays utilities, etc. Therefore, the landlord cannot change any of the terms during the time of the lease.

Rent Increases:
Your rent cannot be raised during the time of your lease. Even if the building is sold, you pay the same rent to the new owner until the lease is up.

During the lease, you can only be evicted for two reasons:

1. You do not pay the rent;

2. You cause serious problems, which violate the terms of the lease.

Your landlord must prove this in court. After the lease is up, your landlord can make you move out. He does not need to give you advance notice before starting an eviction case in court. If you want to renew the lease, talk to the landlord before the lease is up. Try to get something worked out at least one month before the lease ends.

If the landlord accepts rent from you after the lease is up, but a new lease is not signed, then you are renting on a month-to-month basis.

Special rules for tenants in public or subsidized housing (also called RHA housing, HUD housing, or Section 8). Tenants in any kind of government housing cannot be told to move just because the lease is up. They have the right to stay unless the landlord proves in court that there have been serious problems. Be sure to talk to a lawyer if you are told you must move because the lease is up.


Rent Increases:
If you rent on a month-to-month basis, the landlord can raise the rent as long as you get “proper notice”. You must be told about the higher rent at the right time.

If you pay rent every month, the landlord must tell you at least one month earlier that he wants to raise the rent. He must tell you
or send a letter before you pay the rent.

Example: You pay rent on the 1st. The landlord wants to raise the rent starting June 1. He must tell you before May 1. If he only tells you on May 5 or May 10, then the rent increase cannot start until July.

If you pay rent every week, the landlord must tell you that he wants to raise the rent at lease one week earlier. Again, he must tell you before the day you pay the rent.

If the landlord tries to raise the rent without giving proper notice, you do not have to pay the extra rent. But you must still pay the regular rent. If the landlord refuses your rent, hold on to it. If he takes you to court for not paying the higher rent, you can show the judge that you are willing to pay the correct rent.

If you rent from month-to-month, the landlord can evict you for almost any reason if you are given proper notice. This is true even though you have paid all the rent, or have lived there for a long time. (The main exception to this rule is if the landlord is trying to get back at you for calling the housing inspectors. See our leaflet on “retaliation” for more information.)

To make you move, the landlord must give you a definite and clear notice at least one month ahead of time. The notice does not have to be written, although the landlord may have a hard time proving that he gave an oral (spoken) notice.

This notice is legal:

April 29 - Dear Ms. Jones: This is your notice that you must move out by May 31. Signed, Landlord

This notice is not good enough to hold up in court:

Dear Mr. Brown, You might have to move in a month, if I decide to sell the building. Signed, Landlord

You must pay rent up until the time you move out. If you do not, you can be evicted before the notice period is up.

Sometimes the landlord will give a month’s notice, but then accepts the rent after you were supposed to be out. If this happens, he cannot evict you that month. He must give you another notice if he still wants you to move out.

If you do not move out when the notice period is up, the landlord must file an eviction action in court. If the landlord did not give proper notice, be sure to attend the court hearing and tell this to the judge. Ask the judge to dismiss the case.

REMEMBER: Your landlord must always go to court to evict you. This is true even if the lease is up, or if you owe rent.

It is illegal to try evicting a tenant by changing the locks, shutting off utilities, or taking out your furniture. Call the police right away if this happens.

Your landlord must supply running water and reasonable amounts of heat and hot water unless you and your landlord have agreed that you are to pay for the heat and hot water. In any case, your landlord must keep all electrical, plumbing, heating and other systems working safely. If the landlord is supposed to pay for the heat, the temperature in your apartment must be at least 65 degrees.

First, try to contact the landlord. Ask him what he intends to do and when he will have the problem fixed. If you do not get results from the landlord, try the following.

Your landlord is responsible for providing a working furnace, hot water heater, etc., no matter who pays for utilities. A landlord’s intentional failure to provide these working utility systems is a criminal violation. (Real Property Law Section 235.)

Therefore, if your landlord fails to provide a working furnace, hot water heater or electricity, you should call the police. The police will usually try to persuade the landlord to make repairs or to take other necessary steps. If the landlord still refuses to fix the problem, you may wish to “swear out” a warrant for your landlord’s arrest.

You should also call the Niagara Falls Housing Inspectors at 286-4457 or the Niagara County Health Department at 439-7444. They are responsible for enforcing the housing and health codes. When heating equipment does not work, they will usually inspect it immediately.

It is a criminal violation for your landlord to fail to provide fuel when heat is included in your rent. You should call the police if your landlord fails to pay utility or fuel bills.

If you reside in a building which has three or more apartments, you have certain other rights.

If your landlord has failed to pay the utility bill or the fuel bill, you can make payments yourself, or make the payments with other tenants, and deduct the amount you pay from the rent.

If your landlord fails to pay the bill for utilities and, because of the failure, you have to spend extra money (for example, to stay in a motel), you may sue your landlord to try to recover those expenses and punitive damages. (Real Property Law Section 235-a(2).

If you live in a building with only one or two apartments, you may still decide to pay your landlord’s utility or fuel bill and to deduct this from your rent. However, if your landlord tries to evict you for nonpayment of rent, it will be up to the court to decide whether your payment of the bill was reasonable.

CAUTION: When you withhold any amount of rent, you run the risk of eviction for nonpayment of rent. If the landlord tries to evict you, you will have to prove to the court that you withheld rent for a good reason recognized under law, and that you took all the required steps to notify your landlord before you withheld the rent. If possible, check with an attorney first. As a general rule, withholding rent is an emergency measure that you should use after all other attempts to make the landlord take action have failed.

Tenants who complain about conditions at their apartments or who join a tenants’ association sometimes find that their landlord reacts by trying to evict them. The practice, known as “retaliatory eviction”, is clearly prohibited by New York law.

New York law (Section 223b - of the Real Property Law) states that a landlord may not harass or penalize a tenant in retaliation for any of the following:

1. The tenant has made a complaint to a governmental agency like the Niagara Falls Department of Housing Inspections or Welfare Department about housing conditions.

2. The tenant has started a legal action against the landlord to enforce the right to live in decent housing.

3. The tenant has complained to the landlord about conditions.

4. The tenant has joined a tenants’ organization.

If a tenant has taken part in any of these protected activities, a landlord may not “get back” at the tenant by taking any of the following actions:

1. Serving a 30 day notice to vacate or asking the tenant to move.

2. Refusing to renew a lease or to continue a tenancy.

3. Changing the terms of the rental agreement (for example, raising the rent).

If the landlord does try to evict the tenant or to raise the rent, and the tenant believes the landlord’s reasoning is retaliatory, the tenant can raise this as a defense in any court proceeding. The landlord will have to take the tenant to court in a holdover action after giving the tenant a 30 day notice to vacate. In court, the tenant should tell the judge that the reason for the eviction is retaliation and the tenant can ask for a hearing. The tenant should bring proof to the hearing to show that the landlords motive is retaliatory. Proof could be the tenant’s testimony, other witnesses, a Notice and Order from the City of Niagara Falls, etc.

Once a tenant shows a judge that within the past six (6) months the tenant complained to a government agency or worked with a tenant’s group, it is up to the landlord to prove that his purpose in evicting the tenant or raising the rent is not to “get back” at the tenant for the tenant’s action.

In the end, the judge will decide whether the landlord was acting in good faith or was retaliating against the tenant. If the judge decides that the eviction is retaliatory, the matter will be dismissed from court.

CAUTION: To use the defense of retaliatory eviction, the tenant must live up to all the obligations under the lease or oral agreement, including the payment of rent.



Lockport City Court - Tenant's Rights

775 Third Street, P.O. Box 844
Niagara Falls, NY 14302
Phone: 716-284-8831

Niagara County Legal Aid Society, Inc. is a not-for-profit agency providing legal assistance to low income residents of Niagara County in non-criminal matters (i.e., public assistance, social security disability benefits, landlord/tenant, divorce, bankruptcy and utility shutoffs). Clients may open a file over the phone or in person and receive assistance ranging from counsel and advice to representation in court. Clients must meet income and asset eligibility guidelines. There is no charge for the program’s legal assistance.

Program hours:
Monday thru Friday
8:30 a.m. – 5:00 p.m.