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Petition of Nonpayment on month to month lease

NYC Housing Court Practice/Procedures

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Petition of Nonpayment on month to month lease

Postby tmd197 » Tue Jan 07, 2014 8:20 pm

I was renting an apartment in Brooklyn, and the lease expired in May. The landlord and I agreed that I could do month-to-month payments, provided that I gave him 60 days notice. I emailed him on July 8th to give my notice. I then moved out on August 31. I thought that was the end of it.

In mid-December I received a court summons for nonpayment and was charging me rent for September, October, November, December, plus legal fees.

In hindsight the email exchange could be construed as ambiguous, so I don't know if he has a strong case or not. Here is the email exchange with names obviously changed:

June 24, 2013
DEAR MR. TENANT, YOU CAN REMAIN MONTH TO MONTH I WILL NEED 60 DAYS NOTICE PRIOR TO WHEN YOU WILL BE MOVING
PLEASE REPLY IF THAT IS ACCEPTABLE THANK YOU GREEDY LANDLORD MANAGEMENT

July 8, 2013
Dear Greedy Landlord,
Yes, I will give you 60 days notice now. Thank you.
Sincerely, Tenant


July 8, 2013
From Greedy Landlord to Tenant
That means you will vacate end of august?


August 23,

Yes,
Yes, 60 days notice means that we will vacate August 31st. The water is still leaking through the roof as well.

Best, Tenant



So my question is, what legal recourse do I have? Should I hire a lawyer? I talked to one on the phone and he said that because I did not physically hand the landlord the keys (I left them in the mailbox), and I did not notify him of leaving the keys there, that the judge may rule in the landlord's favor. Any advice would be GREATLY appreciated. Thank you.
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Postby TenantNet » Tue Jan 07, 2014 9:12 pm

Few things.

Is the unit rest stab (or possibly should be)? How many units in the building? How old is the building?

What does your original lease say about legal fees? Reed the small print, all of it.

At the most, notice from July 8 for 60 days would go through the month of September, in the most liberal interpretation. However, the email exchange shows you intended to leave at the end of August (and I'm guessing you did). At any time did the LL object to that? I would think he then waived any right to object now.

Do they explain how or why they are seeking rent for Oct-Dec?

Your rights are to answer and fight back, even though it's harassment and intimidation. You must show up in court on all appearances. This type of LL - and I'm assuming his slimy lawyer - will try to get a default out of you.

Yes, the key thing is a problem, but it doesn't mean the LL should be able to do this. (this sounds just like my LL's lawyer) Do you know, and can you show, when the unit was re-rented? (ask your former neighbors). Did the LL come in shortly after you left and do any work to re-rent the place? Did the LL place any ads to get a new tenant? Get a timeline on any of these things.

I would also speak to a few other attorneys (real tenant attorneys) and get a number of opinions.
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Postby tmd197 » Tue Jan 07, 2014 9:28 pm

TenantNet wrote:Few things.

Is the unit rest stab (or possibly should be)? How many units in the building? How old is the building?

What does your original lease say about legal fees? Reed the small print, all of it.

At the most, notice from July 8 for 60 days would go through the month of September, in the most liberal interpretation. However, the email exchange shows you intended to leave at the end of August (and I'm guessing you did). At any time did the LL object to that? I would think he then waived any right to object now.

Do they explain how or why they are seeking rent for Oct-Dec?

Your rights are to answer and fight back, even though it's harassment and intimidation. You must show up in court on all appearances. This type of LL - and I'm assuming his slimy lawyer - will try to get a default out of you.

Yes, the key thing is a problem, but it doesn't mean the LL should be able to do this. (this sounds just like my LL's lawyer) Do you know, and can you show, when the unit was re-rented? (ask your former neighbors). Did the LL come in shortly after you left and do any work to re-rent the place? Did the LL place any ads to get a new tenant? Get a timeline on any of these things.

I would also speak to a few other attorneys (real tenant attorneys) and get a number of opinions.


Hi, thanks for your response. To answer your questions:

Yes, the unit is rent-stabilized. There are 8 units in the building, and the building I believe was built sometime in the 50s. The only communication I had with the LL was this series of emails. He was basically the definition of an absentee landlord--the building had 12 housing code violations for the year 2013 including vermin, leaking ceiling, mold, cockroaches, and no water.

As to when it was re-rented, I don't believe he has re-rented it because last month I received a notice of eviction in the mail. I am guessing they are seeking rent for all of those months because they claim the apartment was in my possession, even though I had vacated the premises.
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Postby TenantNet » Tue Jan 07, 2014 9:43 pm

If the unit is rent stab, then the LL had to offer you a renewal lease for 1 or 2 years at the legal rent plus any RGB increase, and had to be in a DHCR RTP-8 form.

Did he do that.

It's not legal for the LL and tenant to negotiate a shorter term even if it benefits the tenant.

The tenant would still be RS even if the LL did not offer a proper renewal, but some judges might see that as M2M. That gets a bit murky.

Did the LL offer you a proper renewal and did you not accept it? The LL might try to claim that a "deemed lease" is still in effect.

But they can't do that. Deemed leases were invalidated by Samson Management LLC v. Huburt, 92 A.D. 3d 932 (2nd Dept 2012).

I don't see how they can claim there was a lease still in effect for purposes of making a claim like this. However, I don't have all the facts in hand here, so I would get some advice from a tenant attorney that knows this stuff.

You say you got a notice of eviction, but you can't get that before a court proceeding (and there is no document called a Notice of Eviction). What does that document actually say? Did you respond to it?
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Postby tmd197 » Tue Jan 07, 2014 9:52 pm

Yes, the LL offered a renewal lease. I was uncertain if I would need to move in coming months for employment, so I asked for the month to month agreement.

The notice of eviction was just a card in the mail that I (perhaps foolishly) threw out, since I had already been served papers for nonpayment and no longer lived there. It said something to the effect of they could enter the premises, or if I didn't respond they would do so, or something along those lines. Again, I didn't pay it too much mind considering I moved out 4 months prior.
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Postby TenantNet » Wed Jan 08, 2014 1:04 am

If I asked my LL for a partial lease (aside from the fact that they would be delighted), they could not do it. Under RS, you can't have partial-year leases. So he allowed for a side deal.

Yes it happens all the time, but it's not really legal.

Still, with a lease, the LL could say you were required to stay the entire year - or be responsible for the rent for the entire term. Or ... in this case ... if the unit was not properly returned to his possession, he could not release you even if he was willing.

As I said, deemed leases are invalid.

So it seems to me he's trying to claim you are responsible for a lease term that really doesn't exist.

But his claim that you didn't return possession does get dicey, even though it's a crock. That claim might survive whether or not there was a lease.

So again, I'd get some legal opinions on this.
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Postby ronin » Sat Jan 11, 2014 3:25 am

I am also amazed that you would send legal notices by email. A nice certified "I will be vacating" letter would have saved you a lot of problems.

The sloppiness with the apartment key is also very troubling to me. Why would you so casually leave them around? Fedex or UPS those to the LL. How do you know he got them at all?? Especially when you state you didn't tell him you were leaving the keys.

As I see it, his argument is probably going to be that you did not surrender possession because he didn't know about the keys in the mailbox. (And whose to say some kids didn't move in or something? You're lucky there's no claim of damage/ nuisance).

I am also pretty shocked that a valuable RS apartment is being left vacant and treated like a used newspaper during this housing crisis.

I think, in response to your question, that if you have money you should hire a lawyer to try and get you out of this mess for less money. But the question is how does the rent compare to the lawyer's fees. Perhaps if you discuss a flat rate for settling the case it would be worth it.

IMHO
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Postby TenantNet » Sat Jan 11, 2014 4:02 am

In other words, the issue of really having a lease is one thing (and perhaps I was emphasizing that too much), but the question of possession having been returned to the LL is something else, and perhaps more important.

Now, this is a scam and I've seen many LLs do it. No doubt. But you're going to have to poke holes in the LL's claims. If someone moved in right away, then the LL had possession. If the LL was doing renovations, then he likely had possession.
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Postby tmd197 » Sat Jan 11, 2014 11:22 am

Ok well it sounds like my odds of winning in court are very small. I was clearly way too careless in this whole thing. Should I just chalk this up as a life lesson, pay out, and be done with it?
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Postby ronin » Sat Jan 18, 2014 3:06 am

Maybe. But first try and find out if someone has been living there during the time the LL claims he didn't know you had left. Or doing some renovations as Tenant said.

In the future definitely make sure to document the return of your apartment keys!
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