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What is the definition of an 'executed' renewal lease?

NYC Rent Regulation: Rent Control/Rent Stabilized, DHCR Practice/Procedures

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What is the definition of an 'executed' renewal lease?

Postby sr77 » Mon Aug 24, 2020 9:15 pm

My landlord and I differ on what an 'executed' renewal lease is.

LL doesn't seem to think there's any need for me to have a hard copy of the countersigned renewal lease, which it calls 'executed' though no copy of it was returned to me. Instead it sent scans (or photos) as email attachments.

My view is that execution requires that a paper copy that has been countersigned by the LL has to have been returned to me in order for the renewal lease to have been 'executed.'

What's the tenant.net view?

Thanks.
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Re: What is the definition of an 'executed' renewal lease?

Postby TenantNet » Mon Aug 24, 2020 10:57 pm

The way things are supposed to work is as follows for RS tenants:

1. LL sends you a lease offer on DHCR form RTP-8 between 90 and 150 days before the current lease expiration. See https://hcr.ny.gov/system/files/documen ... /rtp-8.pdf
and the instructions for both LLs and tenants on the back.

2. Tenant accepts the offer by signing and returns both copies to the LL within 60 days of receiving the offer. You need to make copies of what you send and send by certified mail. Anything to do with the lease, send by certified mail.

3. Within 30 days, "[T]he owner must furnish the tenant with a fully executed copy of this Renewal Lease Form bearing the tenant's and owner's signatures..."

4. The owner must also furnish a copy of the DHCR informational rider. You didn't say if he did or didn't do that.

In our view, a returned paper copy with the owner's signature is required. A fully executed lease is a paper copy with the owner's signature on it. It is not an email, a PDF or JPG, a fax or anything else; it is the true original (one of two). The LL keeps the other one.

Having said that, many attorneys have told me that when the LL makes the initial offer, that constitutes a binding offer. I can't cite case law on that, but I've heard it.

Also keep in mind that DHCR and the courts have been flexible on the 60 and 30 day deadlines. I've seen cases where a tenant just forgot about signing and returning the lease offer, and the court allowed that.

On a lark, I googled "nys residential lease executed copy" and found this: https://www.avvo.com/legal-answers/if-a ... 00453.html

In the answer, Steve Smollens, a known tenant attorney, offers his view. But understand the answer is for an unregulated apartment and the question is if the tenant is in reality a month-to-month tenant. Smollens says no, that the lease is in effect, despite the lack of completeness, and the tenant retains all rights.

So even without an executed lease, the tenant still retains his rights, and we would say that's the case for RS tenants.

Have you gotten the LL to admit by email or in writing they haven't returned the lease? If not, try to get it. Then - if you choose - you can file a complaint with DHCR.

If DHCR agrees with you (and there's no guarantee they will), the LL's failure to return an executed lease might give cause for a rent freeze until he does. Hard to say how DHCR would treat this, but to be honest, I don't think DHCR would agree with you.

OTOH, if you file, and lose, then you will be in the same spot you are now, and force the LL to write up a defense - just because he's a jerk.

See RSC sections 2522.5, 2522.5(b)(1) and 2523
http://www.tenant.net/Rent_Laws/rsc/rsc2522.html
http://www.tenant.net/Rent_Laws/rsc/rsc2523.html
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Re: What is the definition of an 'executed' renewal lease?

Postby sr77 » Tue Aug 25, 2020 12:51 am

Many thanks for that. I'll have to go through it.

I'll also have to check on the riders. I'm pretty sure the RS Rider was included. I don't know about the DHCR informational rider.

If you can believe this, although I see that a countersigned copy is what they have on file for me (via the photo or scan that was attached to the email they sent), what they actually returned to me by mail was the original renewal lease as tendered, with no selections at all (lease term, corresponding rent), without my signature, but signed by the LL's agent. So the renewal lease had their signature but not mine. I don't even know what to call that. They seem to think they sent me the countersigned lease.

BTW, they want the rent increase under the renewal, which I didn't include in this month's rent because they hadn't returned an executed renewal lease. But am I not correct that they aren't due the increase without having provided me with an executed renewal lease?

Thanks again.
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Re: What is the definition of an 'executed' renewal lease?

Postby TenantNet » Tue Aug 25, 2020 5:44 am

The RS rider and the DHCR informational rider are the same thing. The latest version is about 11 pages long.

In my view, that's not an executed lease even if an electronic copy was sufficient. But still, remember that I have heard this from more than one lawyer, that the mere offer from the LL (without your acceptance) is a binding lease offer. Perhaps binding on the LLs part, but in my view it still needs to be accepted by the tenant. The question, however, is the executed copy, signed by the LL after the tenant's acceptance.

If you don't mind the hassle, I would press the issue. You could force it into court by not sending the rent increase and let them take you to housing court, where a judge might require a hard copy original (remember, you want an original, not just a piece of paper). But going to court is time consuming and can be expensive in a number of ways. I can't tell you which way to go, DHCR or the courts, only that you should consider the pros and cons of each.

You could send the rent to the LL (certificate of mailing) along with a note telling him that the rent increase is not due unless and until they provide the executed lease. Remember, look to the instructions on the RTP-8.
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Re: What is the definition of an 'executed' renewal lease?

Postby Landlords Boy » Tue Aug 25, 2020 12:20 pm

Keep in mind that during Covid the regulators are interpreting things a bit broadly: they know some mailmen won't deliver certified mail properly and some tenants tell me they don't want paper sent to them. And I don't think anyone wants to risk going to a post office for a certificate of mailing. So for now you might have to be satisfied with an email copy rather than the original.

Aside from the Covid situation...I can't speak for sr77's LL but the most common reason why I don't return an original copy of a renewal lease to the tenant is that he or she has sent back only one copy instead of the required two. In that case I keep the original while the tenant gets back a scanned copy via email.
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Re: What is the definition of an 'executed' renewal lease?

Postby TenantNet » Tue Aug 25, 2020 1:14 pm

You said this before. Yes, there are occasional problems with certified mail, but that's not the point. Cert. Mail provides proof of mailing and proof of receipt.

Yes, things are a bit broader now, but the issue of what constitutes a binding offer -- that's been around for many years. That's not a COVID adjustment.

If a tenant doesn't want a certified letter, they are playing with fire. They should be aware of when a lease renewal offer is expected in the mail, and the USPS form should tell them either who sent the letter, or the zip code of origin.

Besides, some leases require both parties to send official notices by certified mail. Mine does. Anything to do with your lease, you use certified mail. Other things can be done by Certificate of Mailing, a bit cheaper, or even by regular mail or email as the situation warrants. Yes, I send rent by Cert. of Mailing every single month.

Here, we're talking about the executed renewal from the LL. I've seen PAR decisions go both ways, so I can't say how DHCR would rule. If in court, a tenant can require the LL to produce the document, either by challenging jurisdiction or with a Bill of Particulars (and discovery if in Civil or Supreme Court.). Remember the LL has to plead the existence of a LL/T relationship in order to obtain jurisdiction. That's why I said the tenant can push the issue if they choose.

If the tenant only returns one copy, you can send a note or email to the tenant telling them you need both in order to execute and return it to them. If you go to the trouble to scan a copy and send it to them by email, you can just as easily tell them to return the other copy.

And it's possible DHCR or a court might freeze the rent until you do.
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Re: What is the definition of an 'executed' renewal lease?

Postby sr77 » Tue Aug 25, 2020 10:24 pm

Just to add: I've never done any certified mail with this landlord. It hasn't led to any problems. I've had problems with the landlord but not because of a claim that I didn't send something I was supposed to.

In this case there isn't a claim that I didn't return the renewal lease. It's clear from the attachment in the LL's email that I did. The question is what the landlord sent to me after I returned the renewal lease, which was not the countersigned renewal lease in the email attachment.

I'm not recommending not using certified mail, but if you already have a history where not using it hasn't caused any problems, I'm not sure it's something to get too concerned about. Obviously, if you have a landlord who's clearly out to get you, then you should do everything by the book.

Tenant.net, can't one try just using regular mail and then switch to certified mail if the landlord seems to be playing games? As far as I know, returning a renewal lease to the landlord by certified mail isn't specified as a requirement anywhere, so particularly if you have a prior history of not having used it, it seems reasonable not to, especially with certified now at over $6 a pop, with return receipt requested.
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Re: What is the definition of an 'executed' renewal lease?

Postby TenantNet » Tue Aug 25, 2020 11:30 pm

Don't assume there won't be problems. It happens. Ignore at your own peril. You should do everything by the book whether or not you think the LL is out to get you. Failure to do this can come back to haunt you, especially now with the USPS issues in the news.

A year or so ago my LL sent me something by certified mail. I found the letter on the floor of the entrance hall. The mail carrier a) didn't even attempt to get my signature, and b) didn't leave a notice for me to go pick it up at the local station. The LL paid for certified and didn't get the protection it paid for. It could happen if the tenant sends it. So yes, it's not perfect.

Still, with certified, you get the proof of mailing and proof of receipt. You can also get tracking online.

As I said, anything to do with your lease, send by certified. You can be lax with your rent and just wait until they come after you for that.

I've won a number of cases where the fact that I used Certified Mail Certificate of Mailing made a difference. So yes, it can matter.

Don't be cheap and foolish for $4.00. If you wait until it does matter, it might be too late.

And why do you think Landlord's Boy is suggesting you don't use certified mail?
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Re: What is the definition of an 'executed' renewal lease?

Postby sr77 » Mon Aug 31, 2020 9:43 am

Thanks. Keep in mind that I've been in email contact with the landlord's office (property manager). In my last email I informed it that I didn't receive the executed lease back, and I offered to send it a copy of what I did receive. No reply to that to date.

What at this point would I be sending them by certified mail that goes beyond that?

(The renewal lease I received wasn't the apparently executed lease pictured in the photo attachment the LL included with its last reply. All it has to do is send me a copy of the same.)

Also, hasn't the renewal already vested (even without a properly executed renewal lease) given that the check without the increase for the first renewal month was cashed? (The LL emailed about the amount of the increase which wasn't included, asking for it to be sent separately.)
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Re: What is the definition of an 'executed' renewal lease?

Postby sr77 » Wed Sep 02, 2020 10:51 pm

TenantNet wrote:As I said, anything to do with your lease, send by certified. You can be lax with your rent and just wait until they come after you for that.

I've won a number of cases where the fact that I used Certified Mail Certificate of Mailing made a difference.

Were the cases you won because you had used certified mail related to lease renewals or other matters?

As I wrote in my last post, I don't know what at this point I would be sending the landlord by certified mail.

If you think about it, certified mail doesn't establish delivery of specific 'content' -- only the delivery of 'something.' The LL could send me another copy of the same renewal lease it already did (the 'bad' one) and claim it had sent the 'good' one. It has no proof it sent the 'good' one, I have no proof that it didn't (just an envelope showing that something was sent 'certified').

So I'm not clear on what the usefulness of 'certified' is, particularly not if there's an existing history of email communications.
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Re: What is the definition of an 'executed' renewal lease?

Postby TenantNet » Thu Sep 03, 2020 2:40 am

I made the point clear and I'm not going to spend more time on this issue.
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