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use and occupancy

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use and occupancy

Postby innocent1997 » Thu Jun 25, 2020 4:37 pm

Hi

My lease ends July 31 and my landlord is raising 10% rent. Hence, I plan to move due to financial difficulties suffered from COVID 19 to a more affordable place.

The lease has a clause that reads "In the event Tenant holds over after the expiration of the term of the lease or in the event the Lease is terminated, Tenant will pay use and occupancy to Landlord in the amount of $6000 per month, for any part of that month from the date of any such holding over in full or before the first of the month." The $6000 is not my rent just fyi. My rent is much lower.

My question is if I hold over for 10 days in August, based on the above clause, does it mean that (a) I have to pay $6000? or (b) I pay $6000 x 10 days / 31 days = $1,935? I am a bit confused with the language when it says "for any part of that month from the date of any such holding over in full" , I am not sure if in full means paying $6000 no matter how many days I stay past my lease. For example, if I stay till Aug 2, do I pay $6000 based on the clause.

thanks
innocent1997
 
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Re: use and occupancy

Postby TenantNet » Thu Jun 25, 2020 10:37 pm

This is a tad complicated. We're not experts in this, so you might wish to get a legal opinion from a tenant attorney as to what it means, and the best way to proceed.

In our opinion, the mechanics of Use and Occupancy (U&O) come into play in the context of court proceedings. A LL can't force you to pay U&O; a court can. But the courts are still - for all intents and purposes - still closed. But the time this plays out, you will likely be out of the unit. It's my understanding that once you've moved out, then the LL can only take you to Civil Court (not Housing Court) as he can no longer seek possession of the unit that you no longer possess.

It's also my understanding (and in my own experience) that U&O is for future rent, usually while a court case is pending, not for past rent. I have never seen a claim of U&O asserted like this, but I can't say it hasn't.

U&O is a legal fiction. Yes, it's "rent," but it's a way for a LL to claim the tenancy is over and he's not collecting rent that might reinstate the tenancy. So it's rent, but it's not rent. And also it can be whatever they claim it to be. When LLs take rent stab tenants to court, they might claim the U&O is much more than the legal RS rent.

I'm presuming that when you move out, all rent will have been paid. However, the LL might play some games with your security deposit. We know some tenants fail (refuse) to pay the last month's rent as a way of working-off the deposit. People say that's not how things should be done, but it is done. And it's not a question of being "legal." It would be a question of how much rent or damages you might end up owing after all is said and done. It's a way of leveling the playing field so LL's can't hold onto deposits without reason.

Here's a short article written by an attorney We think he might be a landlord attorney, but he is based in Boston, so the law there might be different.
http://sherwinlawfirm.com/use-and-occup ... n-eviction
and another one:
http://blog.thepricelawfirmllc.com/2012 ... ways-fair/

I would just Google "Use and Occupancy."

Seems to me the clause in your lease just means your current lease is over and anything going forward is at new and higher rent, sort of like a month-to-month tenancy. Those are usually an extension of an expired lease (same rent and same terms), but maybe this is different.

You might try negotiating with the LL. It's not like he will need the place in the next 10 days or so. Most turnovers take at least a month for cleaning, painting, showing, etc. But if you do come to an agreement, then get it in writing. Do not accept anything like you have described. You probably have more leverage than you might think.

If your current rent is $2,000 (just a guess on my part), the LL might want one additional month. That might be fair in some people's eyes. I would say the current rent for ten days is fair. That would be $667 if your rent is $2,000.

Also when leaving, make sure to have the LL inspect the place for damages (and remember, painting and the like is normal maintenance, not damages) and sign-off on the unit's condition. Take many photos, get a witness and get a receipt for date/time of your turning over the keys, so the LL can't claim you never left. That happens a lot.

One final thing, get a rent history from DHCR - https://hcr.ny.gov/most-common-rent-reg ... es-tenants

Whether your unit is, was, or should be rent stabilized could take sometime if you challenge it, and gives you leverage with the LL. If it is, then you might even get an overcharge award.
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Re: use and occupancy

Postby innocent1997 » Fri Jun 26, 2020 8:17 am

Thanks.

Regarding the security deposit, I requested to pay the July rent (most likely my last month of occupancy if I can find a new apartment) using my security deposit due to financial hardship endured by the Covid 19. I read up and the governor had an executive order in May that allows the security deposit to be paid if the tenant suffers financial hardship due to COVID 19 and the choice is with tenant. So hopefully this will minimize LL playing with the security deposit game.

Below is an excerpt i found from google, https://www.jdsupra.com/legalnews/ny-ex ... for-55092/

"The Executive Order offers further relief to residential tenants. A residential tenant may request that any security deposit being held by the landlord be applied toward rent payments that are overdue or will become due, and the landlord must agree to this request if (1) the residential tenant is eligible for unemployment insurance or benefits under state or federal law or (2) the residential tenant is otherwise facing financial hardship due to COVID-19. This arrangement is at the residential tenant’s option only, and the landlord cannot attempt to compel residential tenants into requesting this arrangement. If the tenant and the landlord reach an agreement to apply the security deposit to overdue or future rent, the following conditions shall apply:

The agreement must be in writing.

If the security deposit does not cover the entire amount of rent due, the landlord is not deemed to have waived the remaining rent due.

The residential tenant must repay the security deposit at the rate of 1/12 the amount used as rent per month (i.e., in 12 equal monthly installments).

Monthly security deposit repayment shall not become due until at least 90 days after the security deposit is used to pay rent.

The residential tenant may opt to retain insurance that provides the landlord with relief, in lieu of making the monthly payments."
innocent1997
 
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Re: use and occupancy

Postby TenantNet » Fri Jun 26, 2020 11:19 am

Yes, I forgot to mention the gov's Ex. Order on deposits. I think it's meant for ongoing tenants, as it requires it to be replenished over time. In your case, you would be recovering your deposit and using it as the last month's rent.

The LL might complain that he's then left with no recourse for real damages. But many/most LLs invent fake damages or try to claim items that would have to be work on anyway, i.e., painting, or carpet cleaning. Those and others are not damages. Perhaps the Ex. Order fits your situation as well (I haven't looked at it that closely).

The order wants it to be formalized, but tenants have been doing this for decades ... just doing it. Look for a solution that solves your problem and somehow is fair to the LL. Remember, any "rent" or U&O that might become due after July 31 is when you are no longer in possession. He can't do anything until then. And if you do withhold July's rent in lieu of the existing deposit, the reality is that the courts are backed-up with long-term adjournments. Unless the LL actually wants to be a dick (not unusual), it behooves him to find a solution as well.

This type of arrangement can have drawbacks, but maybe those aren't issues here. It might also require to reveal to the LL (or a court) of your private financial information. At all costs, I do not recommend giving the LL any of your financial data. Not their business.

And if it's at your discretion, then chances are you can just go along and do it. It does say it has to be in writing; that's kind of hard if the LL doesn't go for it. Poorly-written executive orders are designed for court proceedings. Try to avoid that if you can.

Also, if you've been in occupancy for many years (over 20), you might have significant interest accrued. Anything more recent. will likely be negligible.
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