PROCEEDINGS IN SPECIAL CASES
ACTIONS AGAINST TENANTS
540:13-c Discretionary Stay Dependent on Payment of Rent.
I. If the defendant defaults, or confesses judgment, or if on trial the court rules that the landlord has sustained his complaint, judgment shall be rendered that the landlord recover possession of the premises and costs. A writ of possession shall be issued, provided that, the court may order the tenant shall not be dispossessed until a date not later than 3 months from such default, confession of judgment, or ruling of the court, provided the court decides that under all the circumstances justice requires such stay, based on the reasonableness and good faith of the parties in their respective reports, complaints, demands, and evidence. In the event of any such stay of dispossession, the tenant shall pay the landlord weekly in advance the weekly former rent, or the proportional weekly part of the former rent if rent was payable less often than weekly, and on default of any such advance weekly payment a writ of possession shall be issued and the sheriff shall evict the tenant as soon as possible.
II. Nothing in this section shall be construed to prohibit the parties in a case of nonpayment of rent from agreeing that, in spite of judgment for the plaintiff, a writ of possession shall not be issued, if the defendant makes payments in accordance with a schedule designated in the agreement. The agreement may incorporate the arrearage, future rent due, court costs, and service fees. The agreement shall be filed with the court and shall state the date when final payment of the arrearage, court costs, and service fees are due. Entering into such an agreement shall waive the defendant's right to appeal.
(a) Every such agreement shall conspicuously state in a separate paragraph at the end of the agreement the following language:
I, TENANT/DEFENDANT IN THIS ACTION, UNDERSTAND THAT IF I FAIL TO MAKE ANY OF THE PAYMENTS CALLED FOR IN THIS AGREEMENT ON TIME, THE COURT MAY ORDER THE SHERIFF TO EVICT ME WITHOUT A HEARING. I ALSO UNDERSTAND THAT BY SIGNING THIS AGREEMENT I AM GIVING UP MY RIGHT TO FILE ANY APPEAL IN THIS CASE.
(b) If the plaintiff has not filed an affidavit of non-compliance within 14 days of the date that the final payment under the agreement established under this paragraph is due, the court shall dismiss the action.
(c) The acceptance of any payment pursuant to such an agreement shall not establish a new tenancy.
(d) If payments are not made when due, as evidenced by an affidavit of non-compliance filed with the court by the plaintiff and served in hand or at the abode of the defendant before the affidavit is filed with the court, the court shall issue a writ of possession, within 5 business days of the filing of the affidavit with the court, and without further hearing or judicial review.
(e)(1) Notwithstanding the provisions of subparagraph (d), the court may hold a hearing to determine whether or not a writ of possession shall issue if the defendant files an objection or other pleading in court within 4 business days of the filing of the affidavit of non-compliance and certificate of service with the court, which alleges that:
(A) The defendant made a timely tender of the required payment; or
(B) The defendant had a specific compelling cause for not tendering the required payment or payments on time, and that the defendant is able to tender the past-due payment or payments at the time the defendant files his or her objection or other pleading.
(2) If the court finds that the defendant's motion or other pleading do not meet the requirements of subparagraph (1)(A) or (1)(B), it shall issue a writ of possession. If the court determines that the defendant's allegations meet the requirements, a hearing shall be scheduled to occur within 4 business days of the filing of the defendant's objection or other pleading.
(f)(1) At any hearing under subparagraph (e)(2), the defendant shall have the burden to prove that:
(A) The defendant has made timely payments, and therefore the writ of possession shall not issue; or
(B) The defendant has brought to court cash or a certified check sufficient to tender all past-due payments, and the defendant had a specific compelling cause for his or her failure to tender any past-due payments.
(2) If the defendant fails to meet his or her burden of proof under subparagraph (1)(A) or (1)(B), the court shall issue the writ of possession.
(3) If the defendant meets his or her burden of proof under subparagraph (1)(B), the court shall order the defendant to tender, by cash or certified check, all past-due payments to the plaintiff immediately. If all past due-payments are tendered immediately by cash or certified check, a writ of possession shall not issue, otherwise a writ of possession shall issue.
Source. 1972, 26:1. 1988, 100:3. 1992, 284:88, eff. Jan. 1, 1993. 2016, 220:1, eff. June 9, 2016.