Two lease provisions can save residential landlords time and money in the event that an eviction is necessary. Time and time again I am forced to inform clients that they will have to file a complaint in small claims court in order to recover attorney fees, filing fees, and other court costs associated with an eviction summary proceeding. Small claims can be avoided altogether if a residential lease is drafted properly; all landlords are aware of the problems associated with small claims recovery -- for example, tenants often disappear after an eviction and it can be very difficult to subsequently locate them; therefore, it is all but impossible to have them served (side note: I find that this can be avoided by postponing the execution of the warrant of eviction until a small claims suit can be filed; that way, the small claims court will have jurisdiction over the tenant).
The first suggested lease provision is what I like to call the "as rent" provision. During an eviction summary proceeding a court is limited by statute to only provide money judgments for rental arrears. Therefore, if you have a lease provision that calls for the payment of attorneys fees and associated costs (side note: such a provision will be considered reciprocal for both the landlord and tenant even in such a case as: "Tenant agrees to pay attorney fees and associated costs in the event that litigation arises out of this contract" [if the tenant is successful in court the landlord will have to pay such costs]) if the magic words "as rent" are not included in the provision, the court will be unable to provide relief pursuant to the terms of the provision. Simply put, to recover attorney and associated fees the phrase "as rent" must be included in a lease provision. An example of an "as rent" provision is as follows: "The undersigned Lessee(s), agree(s) that any costs, including but not limited to attorney fees, filing fees, court costs, service of process fees, executions of warrants of eviction, or any other such disbursements, will be charged to the undersigned Lessee(s) as rent if the undersigned Lessee(s) becomes in default of the obligations memorialized by this lease agreement by materially breaching the terms set forth herein or by nonpayment of rent that has become due."
The second time and money saving lease provision which I have found is often overlooked in residential lease agreements is a joint and several liability provision. Many times when there are multiple tenants named in a petition it is very difficult to get personal service on each individual for obvious reasons. As most landlords are aware, personal service is required to be awarded a money judgment in the case of a default. Therefore, if you are able to get personal service on one of the tenants, and have to settle for substitute service on the remaining tenants, but you have a joint and several liability provision in your lease, you will be able to get money judgments against all of the tenants named in the petition. Here is an example of such a provision: "All obligations of the Lessees are joint and several and may not be waived or apportioned except by written assent of the Lessor. Lessor may recover any outstanding rent, use and occupancy, damages or other monies owed as a result of the tenancy from any one or all Lessees at Lessor's sole option."
Landlords, if these provisions are not currently in your leases, it is time to add them. Trust me, you will thank me later.
NOTE: This post is only applicable to New York law and does not create an attorney-client relationship. Instead, this post is for informational purposes only.