gettin sued, didn't renew lease, but they say I'm boun

[noahapple]

I stayed over the end of my lease 6 months (I was not offered a new one despite phone requests) gave them a months notice, (in writing) and then left, I'm being sued by the landlord for the last 6 months of a lease I didn't sign or agree to. <they say its a valid lease because I sayed on, and paid the new rent> (it is also rent stabilized) Are they right?
Do I need a lawyer? Any responses would be very helpful.
Thanks!
-Noah

[Anna]

There is no easy answer to this problem, well... two problems, really...

But first, questions:
A. Where is LL suing you: Small Claims Court? Housing Court ? Civil Court?
B. Has the whole twelve-month term of the 'renewed' lease expired? i.e., did you move out more than 6 months before LL sued?
C. Was this your first renewal period; if not, were previous renewal for one or two years?
D. Did you pay the RGB renewal increase for those six months at the rate for a one- or two-year renewal?
E. Does LL have lawyers representing him in this lawsuit?

<small>[ March 10, 2006, 11:15 AM: Message edited by: Anna ]</small>

[Anna]

Two more questions:
F. Did you surrender the apt to LL?: did you give LL or his agent the keys when you moved out?
G. Did a new tenant move in & WHEN?

[Aubergine]

Rent Stabilization Code (9 NYCRR) § 2523.5 (c) (2) provides:

"Where the tenant fails to timely renew an expiring lease or rental agreement offered pursuant to this section, and remains in occupancy after expiration of the lease, such lease or rental agreement may be deemed to have been renewed upon the same terms and conditions, at the legal regulated rent, together with any guidelines adjustments that would have been applicable had the offer of a renewal lease been timely accepted. The effective date of the rent adjustment under the 'deemed' renewal lease shall commence on the first rent payment date occurring no less than 90 days after such offer is made by the owner."

(Emphasis added.)

It sounds as if the LL is trying to invoke this "deemed" renewal provision without having satisfied the express condition of a duly offered lease renewal. It might be worthwhile to seek sanctions against the landlord and its lawyer for pursuing a frivolous lawsuit.

[Anna]

The 'deemed renewal' is one of the legal quagmires OP will face. Courts have applied it even when no offer was made to T. As a practical matter, LLs frequently lie and OP's LL will probably claim that it did mail it. OP should NEVER had paid the increase. If OP loses the 'deemed renewal' battle, he will still have to win the 'mitigate damages' battle. If OP wants help, he should answer the questions.

[Aubergine]

A useful decision to cite would be Baginski v Lysiak, 154 Misc 2d 275, 276 (App Term, 2d & 11th Jud Dists 1992):

"We reject this concept of the automatic renewal of a lease in the context of rent stabilization. When a landlord accepts rent after the expiration of a lease a month-to-month tenancy is created (Real Property Law § 232-c). The rule is not different when the lease is for an apartment that is subject to rent stabilization. It is true that the tenant may be entitled to a renewal lease and may maintain a proceeding to compel the landlord to issue one. It is also true that even absent such a proceeding, the tenant cannot be evicted solely upon the ground of landlord's failure to offer such a lease (see, Friedman v Babic, 118 Misc 2d 565). But the mere acceptance of rent after the expiration of the lease cannot in and of itself be deemed an automatic renewal of the lease."

[Anna]

Exactly! but note that this decision was written 8 years prior to the newish (12/20/00) RSC § 2523.5(c)(2).

This new code is invalid & unenforceable against Ts: LAW TRUMPS CODE. It is just one more example of Pataki's DHCR attempting to create more LL-rights instead of fullfilling their mandate which is to enforce the RSL/ETPA for the protection of tenants and stability of the community. The problem is that DHCR, LLs, many judges, & most unschooled Ts will abide by DHCR's codes, even when they are clearly in violation of the law.

Month-to-month tenancies are entirely a creature of statute: RPL 232-c was enacted to abolish the common-law rule that the lease would be renewed for the same period of time as the original, e.i., one or more years, upon Ts holding over & LL's acceptance of rent.

[Aubergine]

True, but both then and now, RSC section 2523.5 (d) provided that "the failure to offer a renewal lease pursuant to this section shall not deprive the tenant of any protections or rights provided by the RSL and this Code and the tenant shall continue to have the same rights as if the expiring lease were still in effect" (emphasis added). It does not say "as if the expiring lease had been automatically renewed for an additional year." How can the tenant's continuing right to a lease renewal offer, which is expressly provided by RSC § 2523.5 (c) (1), have any meaning if the tenant does not retain the right to decline that offer?

The decision in Baginski v Lysiak was based on Real Property Law 232-c, which provides:

"§ 232-c. Holding over by a tenant after expiration of a term longer than one month; effect of acceptance of rent. Where a tenant whose term is longer than one month holds over after the expiration of such term, such holding over shall not give to the landlord the option to hold the tenant for a new term solely by virtue of the tenant`s holding over. In the case of such a holding over by the tenant, the landlord may proceed, in any manner permitted by law, to remove the tenant, or, if the landlord shall accept rent for any period subsequent to the expiration of such term, then, unless an agreement either express or implied is made providing otherwise, the tenancy created by the acceptance of such rent shall be a tenancy from month to month commencing on the first day after the expiration of such term."

IMHO, it would be error for a judge to discern an "implied agreement" to a renewal for a new term, if the LL had failed to comply with the statute requiring it to serve a binding lease renewal offer in writing and permitting the tenant 60 days to accept or reject that offer regardless of when it was made.

While one certainly cannot rule out the possibility that some Civil Court judge or arbitrator might rule in favor of the LL even without the LL claiming to have sent a renewal offer, IMHO that would be a totally erroneous decision as a matter of law.

[Anna]

Originally posted by aubergine.:
IMHO, it would be error for a judge to discern an "implied agreement" to a renewal for a new term, if the LL had failed to comply with the statute requiring it to serve a binding lease renewal offer in writing and permitting the tenant 60 days to accept or reject that offer regardless of when it was made.

While one certainly cannot rule out the possibility that some Civil Court judge or arbitrator might rule in favor of the LL even without the LL claiming to have sent a renewal offer, IMHO that would be a totally erroneous decision as a matter of law.

Let me re-phrase: no mere state agency like DHCR can write a code, rule or regulation that overrules a state law. LAW TRUMPS CODE, even if the code was written first. RPL 232-c was enacted by Albany decades before the RSC was even a glint in anybody's eye! (if, however, there was something similar in the RSL or the ETPA, the DHCR could clarify it in the RSC).

So, even if LL had actually sent the renewal offer & T ignored it, T's lease cannot be deemed renewed for one year per RPL 232-c.

Not only have some HC judges ruled otherwise, so have some appellate courts.

The Appellate Term, 2nd and 11th Judicial Districts, PESCE, GOLIA and RIOS, indirectly affirmed the award of rent based on RSC § 2523.5(c)(1) by HC Judge Lebovits in 2004 in Brooklyn Properties v. Shade. They should have flat out reversed the lower court & granted the vacation of the default judgment and dismissed the proceeding because LL sued for rent in excess the LRR.

Last month the Appellate Division invoked it to fashion an 'equitable' termination date of a non-existant renewal in a drawn-out high-income deregulation case in Lacher v DHCR, 2006_00217. What the AD1d SHOULD have ruled is that since LL failed to fullfill his obligation to offer that last renewal during the pendency of the proceeding, LL must offer one now & wait for it to expire before raising the rent to the free-market rate. [If LL includes the correct language in renewals offered while OPD's are pending, apt can be deregulated 60 days after any final decision, see RSC § 2522.5(g)(2)]

[noahapple]

Thanks for the replies folks: here are some answers to the questions:

<<<But first, questions:
A. Where is LL suing you: Small Claims Court? Housing Court ? Civil Court? >>>

Civil Court, 11th floor, brooklyn

<<<B. Has the whole twelve-month term of the 'renewed' lease expired? i.e., did you move out more than 6 months before LL sued? >>>

The whole "renewed lease expired 8/31/05, we moved out 4/31/06, landlord sued, almost 8 months later,

<<C. Was this your first renewal period; if not, were previous renewal for one or two years? >>

This was not the first renewal, previous renewals were also for 1 year

<<D. Did you pay the RGB renewal increase for those six months at the rate for a one- or two-year renewal?>>

we paid at the one year increase

<<<E. Does LL have lawyers representing him in this lawsuit?>>

the LL has lawyers

<<F. Did you surrender the apt to LL?: did you give LL or his agent the keys when you moved out?>>

we sent a registered letter to LL one month before vacating, and gave the keys to the super we we moved out.

<<G. Did a new tenant move in & WHEN?>>

LL says new tenant moved in 8/31/04 (the end of our "renewed" lease) (should I contact that tenant and ask when they moved in?)

Thanks so much for the help!
-Noah&Mya&Nate

[Downtown]

Definitely find out when tenant moved in...also when they first viewed apt. Good idea to ask neighbors if/when renovations were done (LL could have used this time to renovate instead of rerenting).
Were there any rent demands before this. LL receives registered letter (hopefully you have receipt and copy). Super accepts return of keys (do you have a receipt). Minimally, would think apt. was painted and shown before end of "imagined lease". LL should have mitigated damages.

[Aubergine]

"LL says new tenant moved in 8/31/04 (the end of our "renewed" lease)"

Was that a typo?

[noahapple]

---! "LL says new tenant moved in 8/31/04 (the end of our "renewed" lease)"

Was that a typo? ---!

I meant our "imagined" lease. (or what they call deemed lease) 8/31/03 was the expiration of our last signed lease.

we don't have a reciept from the super.
should we go by the building and talk with the tenants?
Thanks!
-Noah&Mya&Nate in Flatbush

[noahapple]

---Were there any rent demands before this?---

Before we were sued we were contacted by their lawyers attempting to collect the six months rent, we sent them a copy of our expired lease, and a copy of our registered letter of intent to leave, and we thought that would be it, sadly no.

-Noah

[Aubergine]

Anna, do you know something about the facts of Brooklyn Props. v Shade, 4 Misc 3d 29 (App Term, 2d & 11th Jud Dists 2004) besides what appears in that decision or in the Appellate Term's earlier decision restoring the tenant to possession (NYLJ, 2/11/2003, 23:6, http://tenant.net/Court/Hcourt/index.html?x=900 ) ? All the court said in the 2004 decision about "deemed" lease renewal was this:

"Landlord's agent testified as to the rent owed based on 'deemed' lease renewals (see Rent Stabilization Code [9 NYCRR] § 2523.5 [c] [2])."

If the landlord admitted on the record that it had failed to offer a renewal lease, I would agree with your statement that this did not establish the legality of the rent charged. But the language above doesn't itself suggest that a lease renewal can be "deemed" absent an offer, even if that was the premise of Lebovits' decision.

I fully agree with your take on Matter of Lacher, __ AD3d __, 2006 NY Slip Op 00217, http://www.nycourts.gov/reporter/3dseries/2006/2006_00217.htm . It would be interesting to see how fully the parties briefed the issue of "deemed" lease renewal, and particularly what DHCR's position was.

<small>[ March 13, 2006, 12:45 PM: Message edited by: aubergine. ]</small>