SO..ya tell the LL youre leaving then change your mind!!!!
Posted by Richard on May 27, 1999 at 22:47:15:
NOT A GOOD IDEA!!!!....So if the LL wants a 20% vacancy increase well ya gotta pay it...or move....
Stabilization -- Tenant Notice of Intention Not to Renew -- Tenant Cannot Change Mind After Parties Change Their Position
This case involved a rent stabilized apartment. The respondent resided in the apartment since 1995. Pursuant to Rent Stabilization Code (RSC), a lease renewal form was delivered to the respondent. The respondent returned the renewal lease form, having checked off the box that stated that he would not renew his lease and intended to vacate the apartment on the expiration date. The respondent also sent a letter to the owner stating that he would vacate the premises. About three days later, the respondent changed his mind. The respondent acknowledged that prior to changing his mind, he was aware that his apartment had been rented to other tenants in the building.
Upon expiration of the respondent's lease, the owner commenced the instant proceeding without serving a predicate notice. The respondent argued that he was within the ''statutory provisions when he changed his mind" and that a predicate termination notice must be served.
Under the Rent Stabilization Code (RSC) >2523.5 a notice must be given to a tenant not more than 150 days and not less than 120 days prior to the expiration of the lease term offering to renew the lease for a term of one or two years at the legal regulated rent permitted for such renewal and at the same terms and conditions as the expiring lease. The owner must give the tenant 60 days from the date of service of the notice to accept the offer and renew the lease. If the tenant refuses to renew, the owner may commence a proceeding after serving a 15-day termination notice. (See RSC >2524.2; RSC > 2524.3(f).
The issue before the court was whether the respondent may change his mind and whether, if not obligated to renew the lease, the owner must comply with the RSC and serve a notice of termination.
The court explained that while the RSC applies to a tenant's refusal to sign a renewal lease, it is inapplicable where a tenant ''specifically and voluntarily makes known his intention to vacate the premises upon termination of the lease." The court stated that upon expiration of the lease, the tenant's right to continued occupancy expires.
The court rejected the respondent's argument that he should be permitted to withdraw his termination because to do otherwise constituted a waiver of any benefits conferred under the RSC. RSC >2520.13 provides that an agreement by a tenant to waive benefits under the Rent Stabilization Law or the RSC is void. The court explained that the section refers to an agreement between the parties. Here, there was no negotiated settlement agreement between the parties. Rather, the respondent had made a unilateral decision that had been accepted by the owner.
The court emphasized that the owner had no choice but to accept the respondent's decision to vacate the apartment. The court emphasized that RSC > 2520.13 ''was intended to avoid situations whereby the landlord attempts to circumvent the benefits of the RSC proscribed by law to a tenant who is in possession." The court found that the ''[r]espondent's election to expressly, affirmatively and unequivocally surrender future possession of his tenancy was clearly not a waiver of benefits under the Rent Stabilization Code.''
The court explained that tenants are entitled to the rule of equity that ''relieves against such forfeitures of valuable lease terms when default and notice has not prejudiced the Landlord and has resulted from an honest mistake or similar excusable fault." The court found that the respondent's refusal to vacate had caused prejudice to the owner, since the owner had relied to its detriment on the respondent's representation. Moreover, the respondent's ''change of heart" had affected two other families, i.e., the family that was going to move into his apartment and the family that was going to move into the apartment of the tenant that was going to relocate into the respondent's apartment.
The court held that because the petitioner relied on the respondent's representation that he was terminating the tenancy, the respondent is now estopped from claiming that the RSC applies. The court further found that there was no evidence to support the respondent's claim that the owner's decision was predicated on harassment and retaliatory eviction. Since the RSC is inapplicable to a voluntary termination of the lease, the court held that the 15-day notice of termination was not necessary and that the leasehold had ended. Accordingly, the court awarded judgment of possession to the owner.
Livbros, LLC v. Vandenburgh, NYLJ, Feb. 17, 1999, p. 37, col. 1, Civ.Ct., Kings Co., Birnbaum, J.
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