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Re: Contractual Alternatives to Leases (A Long One)

Posted by Dayann on August 06, 2001 at 14:22:00:

In Reply to: Contractual Alternatives to Leases posted by kim on August 03, 2001 at 17:48:11:

Hi, Kim. I am not a lawyer but I've dealt with NY landlords for a good 7 years, and I'm telling you now, this guy is not an honest guy, don't sit there with nothing but an oral agreement. After reading your post, I immediately saw a bunch of red flags on the horizon. He has no problem defining this as a landlord/tenant business relationship when he collects money from you, yet he has a problem doing so when you want a document that protects you from being tossed out on the street when he decides that he wants more money for your apartment or he wants to give your apartment to his long lost aunt. Don't buy it. Anyone who wants to take your money but doesn't want to put something in writing, documenting that money was exchanged and what the relationship is, is not someone to be trusted. Masking it in friendly language ("oh but we're roommies, we're friends, we don't need an agreement") is an indication that the guy likes to manipulate people into giving up their rights as tenants. (If he was a good "friend" or a good "roommate" he would respect your need to feel secure about the situation and he'd have no problem defining your relationship to him in writing.)

You DO have something that can help you. Write him a "letter of understanding." Just put together a very friendly letter, saying what your understanding of your relationship with him is, and thanking him for any special perks, for example if he said you could have a pet, throw in a sentence that says, "thank you for letting my cat stay here," if a parking space or use of the yard is included with the rent, you might say "thanks for the parking space" or "I am looking forward to barbecuing in the yard now that I'm sure it is included in the rent, and maybe you can come to have some ribs with us next week," etc. (Some ribs and potato salad vs. your right to a written agreement -- ribs should win) Be sure that the letter covers all the little details of the arrangment you have with him, including any money that has been, or will be exchanged, the length of your tenancy, any special house rules, etc. Do your utmost to make the tone of the letter very friendly and non confrontational. THEN, and this is the clincher, at the END of the letter, be sure to say "If my understanding of our arrangement is different from yours, please advise me of any changes or misunderstandings in writing. If I do not hear from you by [give him an exact date that is 30 days from the date of your letter], then I'll assume that my understanding of our arrangement is correct." Another good thing to add would be, "if my understanding of our agreement is correct but you want to change it in the future, please be so kind as to give me 30 days notice, preferably in writing, of any changes." Be sure that the letter clearly indicates where to write back or call you back. SEND THIS LETTER VIA CERTIFIED MAIL, RETURN RECEIPT. If he lives in the building, then you may want to slip a copy of the letter under his door the same day you mail your letter at the Post Office, with a little note on it that says something like, "so as not to catch you off guard, I am hand delivering a copy of my letter to you, but the original is being sent via certified mail. I understand that we're friends, so I hope you'll pardon the formality." This way he is not totally knocked for a loop when he gets a certified letter from someone who lives just downstairs or right down the hall.

This is how the letter of understanding helps you:

If there is any dispute in the future or if god forbid the guy tries to raise the rent, evict you, charge more than he is supposed to, whatever, you have a written document outlining what your agreement was. If the guy doesn't write back to you, then legally, he is agreeing to the terms outlined in the letter, and if there is a dispute as to the rent, the nature of your relationship with him, etc., and it goes to Court, the Court will honor what is in the letter of understanding since he made no attempt to correct you in writing or revise the terms of the arrangment/agreement you have with him.

The letter also has to some degree the effect of a written contract. If you agreed for example that he would fix something in the apartment, and you documented it in your letter of understanding, and he did not correct you in writing, and then he doesn't make the repair, then you can argue breach of contract in Court and you can also collect damages arising out of that breach. Or, if you have in your letter of understanding, "thank you so much for allowing me to keep my cat," or "thank you for allowing me to smoke," then he can't later go to Court and try to evict you for having a pet, smoking, etc.

The other clause I suggested, which says "if you wish to change anything in this agreement, please notify me 30 days ahead of time, preferably in writing," MIGHT help you if the guy tries to raise the rent, or say, "OK your cat was allowed before but now you can't have pets here," etc. If the guy says he wants to raise the rent but doesn't give you 30 days notice in advance, or decides your cat needs to be evicted but doesn't tell you that a month ahead of time, you can possibly fend him off in Court if he tries to evict you by saying that the rental agreement changed and you failed to keep your end of the revised deal. You can say to the judge, "your honor, I have a written understanding with this person. If he wanted to change that understanding, then why didn't he put it in writing like I asked him to in the beginning of my tenancy?" The burden of proof then falls back on him, he has to prove that he did revise the agreement and that you were given sufficient notice, time and opportunity to comply with the revised terms.

If you really try your best to make the letter of understanding friendly and non confrontational, then unless he's a really dishonest person whose dealt with tenants who know their rights before, he will either not respond, or at least not respond in a mean way. He might try to discourage you from putting things in writing in the future by saying, "oh we're all friends here, you didn't have to write me a letter, all you had to do was call, etc." This is more manipulation in an attempt to get you to waive your rights. If he does this just smile and be nice but put things in writing when it's important to do so, and in as friendly and nonconfrontational a tone as possible, so he can't peg you as a difficult tenant or accuse you of sending him harassing letters. (If the tone of the letters is nasty, he can use "nuisance" or "harassment" as a defense for evicting you.)

If he writes back to you to "correct" things in your letter, this is not necessarily bad because he is defining in writing what his relationship to you is, and this is what you wanted -- something in writing that clearly defines your relationship to someone who owns most of the rental units in the building in the absence of a lease. Any representations he makes in writing are enforceable in a Court of law as long as they are legal. If there is a really marked difference between your understanding of the living arrangement and his, then you can either respond in writing, or ask to sit down over a cup of coffee or tea and go over the arrangement again, this time with a witness present -- it doesn't have to be obvious, you can have a family member or mutual friend visiting and having coffee with you on the same day and time, or you can ask them to "drop in" after the landlord gets there. After the landlord lets you know what he disagreed with in your letter, be very gracious even if your blood is boiling. Tell him, with a smile on your face, "see how people sometimes misunderstand what is expected of them? I'm glad I wrote that letter or we would be living under two completely different ideas of what is expected of us. Let's try to reason this out so that everyone is clear, including me. You don't mind if I take notes, do you? As you have already learned, I have such a hard time remembering things sometimes, and it helps for me to write things down!" Then when you've hashed it all out, write a final letter of understanding based on the notes you took. Save both the notes and the second letter of understanding, which should also be sent via certified mail, return receipt. If at any point the landlord tries to get you to agree to something that is illegal, then you need to start looking for a new apartment and talk to a lawyer, because you are dealing with someone who doesn't respect your rights as a tenant.

Remember that you are also responsible for any terms in your letter of understanding. For example, if the landlord said the rent was due on the first nd you put that in your "letter of understanding," or he asks you to revise the letter to reflect that detail of your arrangement, then you have to pay the rent on time, otherwise he can take his copy of that same "letter of understanding" to court and sue you or evict you for nonpayment of rent or nuisance. If you should have a problem paying the rent on the first, you may want to ask this guy to make a later rent payment date with you or ask him what the procedure would be if heaven forbid you had an emergency and your rent was late, write that procedure down, and include it in your letter of understanding. (Or better yet, write a seperate letter of understanding if and when the problem comes up.)

One last word of advice. You said this person accepted a deposit from you but is reluctant to put your renting arrangement into a written form. DO NOT UNDER ANY CIRCUMSTANCES EVER GIVE THIS MAN ANY CASH PAYMENTS WITHOUT A RECEIPT, IN FACT, TRY TO PAY BY MONEY ORDER OR CHECK. This way you have a record that money was exchanged, and you can trace a check or money order to document who cashed it and when. I was once in a situation where my landlord insisted on being paid in cash but wouldn't give receipts. Then, when he wanted me out, he went to Court and tried to say that I was being evicted due to nonpayment of rent. I had no proof that I had ever paid rent, it was his word against mine, and I had no proof that there was a security deposit. He could have tossed me out on the street without my ever receiving my security back, and he could have also scammed me for more money by claiming I hadn't paid rent for 6 months and getting a money judgement or lien against me in court. I was lucky in this situation because it turned out I was renting an illegal (attic) apartment, and because of that, he wasn't able to get a Court of law to force me to pay anything, nor was he able to put me out on the street at a moment's notice -- there would have to have been an ejectment action and he would have ended up having to pay back taxes, so we worked out a settlement.

In any case, the fact is that no matter how nice a person (or a "roommate") seems at first, you never know what the person will turn into when he or she wants more money for the apartment or if some other disagreement comes up. If you have already given cash to this man without a receipt, be sure to mention the dates and amounts of monies exchange (and what you paid the money for) in a letter of understanding IMMEDIATELY. Tell him that from now on you want to pay by check or money order if he can't issue receipts. Tell him you need to do this for tax purposes or just to keep your own personal financial records in order, whatever.

Anything tricky, run it past a lawyer. You can get a referral from your local Bar Association and they can only charge $25 or $35 if you are referred to them by the Bar. Have specific questions ready and listen to what the lawyer says, take his card and ask what his services in the matter would cost and keep the information in a safe place. Lawyers usually keep some record of potential clients and what transpired during the course of an initial consultation, so if you need help in the future, you'll have someone who is somewhat familiar with you and the situation.

Good luck to you.

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