In New York real estate law, when a landlord or property owner wishes to evict someone for reasons other than failure to pay rent, they must initiate what is known as a “holdover proceeding.” For example, if a lender forecloses on a property and sells it at auction, the purchaser may use a holdover proceeding to take possession. But it is essential the owner follows New York law to the letter, otherwise a judge may dismiss the proceeding.
Defective Power of Attorney Thwarts Eviction
Here is a recent case on that point. The petitioner here acquired title to a building in Nassau County, New York, through a foreclosure proceeding. The petitioner then moved to evict the existing occupants of the building. Some of these occupants were considered tenants under New York law, others were not. This matters from a legal standpoint because New York requires the owner give ten days notice for a non-tenant to “quit” the property, but 90 days notice for a tenant.
Here, the landlord purported to make the applicable notices through an agent. The agent held a limited power of attorney signed by a representative of the owner. A limited power of attorney is a document commonly used to facilitate real estate transactions. For instance, a person may want to purchase a house but is unable to personally attend the closing; in such circumstances, the buyer can sign a limited power of attorney authorizing an agent to sign the closing documents in his or her name.
As the name implies, a limited power of attorney is “limited” to the matters specified in the document. That is, just because you authorize an agent to close on a house for you, that does not mean you are also giving them the power to sell your other properties or take out a loan on your behalf. Any act not expressly authorized by the limited power of attorney is invalid.
In this case, a Nassau County judge determined the limited power of attorney signed by the owner did not authorize the agent “to commence eviction proceedings or otherwise involve itself in matters relating to possession” of the property. Instead, the power of attorney was limited to acts related to the foreclosure itself—i.e., obtaining title to the property. The petitioner argued that the holdover proceeding falls under the limited power of attorney's authority to take actions related to “the closing of the title to the property.” But the judge disagreed, noting the petitioner already held title. The issue here was possession. Accordingly, the court dismissed the petition as “jurisdictionally defective.”