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Can I vacate without notice?

NYC Housing Court Practice/Procedures

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Can I vacate without notice?

Postby resolute » Sat Dec 05, 2009 1:05 pm

Hello,

I am now in a 'use and occupancy' state with my landlord having gone through a non-payment proceeding (judgment being appealed). I obtained a temporary stay from the appellate term.

My question is this: do I have to give the landlord notice before moving out? I am concerned that if I do leave without notice the landlord might later want to sue. Someone told me that even if I move out, landlord may later sue me for the remaining months on my lease (I thought the lease was no longer in existence since the landlord-tenant relationship had been severed - hence my being asked to pay use and occupancy?)

Please, any thoughts on this would be appreciated.

Thank you all so much.
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Postby TenantNet » Sat Dec 05, 2009 1:40 pm

I would agree with this interpretation. Generally, once a lease is over, tenants can just move out without notice. If they don't they risk the owner commencing a proceeding in housing court for a "Holdover." (the notice rules for month-to-month tenants is detailed in the Reference section, link above).

In your situation, apparently the LL commenced a Holdover proceeding against you prior to the normal end of the lease, and would have to allege certain facts and grounds upon which to maintain the eviction proceeding.

In this situation, you would likely have received a "Notice to Cure" alleging the facts upon which the LL claimed were a violation of the lease terms. Later the LL would have issued a Notice of Termination, and still later would have commenced the Housing Court proceeding by the service of a Petition and Notice of Petition.

As such, the proceeding is predicated on your "holing over" past the termination of the lease, hence the need for the Notice of Termination.

If the LL accepts rent from the tenant at any time after the Notice of Termination, the tenant could argue that they acceptance of rent vitiated the Notice of Termination and/or restored the Landlord-Tenant legal relationship ... meaning there is no holding over.

If a LL desires rent during the pendancy of the case, they can make a motion of "Use and Occupancy" - a legal fiction that calls the rent something else. A court might then order the tenant to pay the "Use and Occupancy" to the LL. Some courts might direct the rent to be paid into court. Still others direct the attorneys to hold it in escrow.

Your theory is that since there is not currently a lease or LL-tenant relationship, if you move, then the LL can't later claim rent for the remainder of the lease term.

I would agree with this line of thinking, but have not researched the issue. If you're really concerned, I would suggest getting a legal opinion.

It also begs the question ... if you plan on moving, why are you fighting the LL's efforts to evict you?

I would also pay attention to what the lower court decision and AT stay have stated. Moving may not end the proceeding or appeal. If the LL sought the rent for the remainder of the lease in his initial papers, that -- I think -- would survive your leaving. So leaving might not extinguish your liability.

Depending on many things, if you do want/plan to move, consider settling the matter ... might end things on terms you can accept. The LL would want you out and you could trade that for some level of potential liability or litigation costs.
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Postby resolute » Sat Dec 05, 2009 2:05 pm

Thank you so much for your detailed and amazingly-prompt response, TenantNet.

Actually, this was a non-payment proceeding with some judgment awarded to the landlord. There were serious concerns about the hearing of the case and also some legal concerns, hence I've proceeded to appeal the decision. I requested a stay on enforcement of the judgment pending the determination of the appeal. The stay was granted on several conditions, one of which directed that continuing use and occupancy be paid.

I was advised that once a judgment is rendered on a case, it automatically severs the landlord-tenant relationship (hence the introduction of the term 'use and occupancy' to substitute for the rent). If I wanted to retain the premises, I would of course pay off the entire judgment amount AND THEREAFTER seek that the judgment be vacated by the court, invariably restoring the landlord-tenant relationship. I should mention here that this is a rent-stabilized apartment.

A warrant of eviction has never issued.

I am not in any way interested in retaining the apt so I'm trying to move out ASAP. I strongly suspect the landlord will not want to return my security deposit anyhow hence I'm planning to simply notify him in writing that he can use it as the last month's rent (yes, I know this is not the legal route, however I'd rather do this than start the headache of a small claims later). My plan is to move out, hand over the key and follow up with a letter confirming I've moved out.

Any thoughts?
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Postby TenantNet » Sat Dec 05, 2009 4:54 pm

I think there might be some inconsistency with terminology. A non-payment is based on just that: non-payment. It is not based on the termination of the lease, hence if a LL seeks the rent pending the proceeding, they would call it "rent" as far as I know, not "use and occupancy."

Perhaps the court called it U&O, but if the LL-T relationship is still there, it's rent. The LL-T relationship would be severed when a decision is rendered only if combined with an order of possession. That could be the issue. Many non-payment decisions also have a short stay so the tenant can pay what's ordered before an eviction is carried out.

If a proceeding involves extended litigation, it would entail payment during the proceeding if the LL moved for that. Perhaps here it's as a condition of a stay, and that might have stayed the order of possession. I say all this based on experience in both holdovers and non-payments, but I'm not a legal practitioner, so I can't say the above is absolute in all instances.

Why are you appealing if your intent it to move out?
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Postby resolute » Wed Dec 09, 2009 5:48 pm

Thanks again, TenantNet

From what I was made to understand (and what appears to be in the Order/Judgment in my case), whenever there is a non-payment case, there is a money judgment and a possessory judgment. If the money judgment is paid within the automatic stay period (5 days after judgment is entered), then the requirements are fulfilled. However, if not, even if you pay the money after, the landlord can collect and still evict you; hence the understanding that the landlord-tenant relationship is severed.

I'm appealing because I made a counterclaim that was barely addressed. There were several conditions that I brought up which the judge seemed to have overlooked (judge was barely listening during the proceeding.. kept twiddling with the cellphone/texting). Expectedly, a judgment was rendered in favor of the landlord that was clearly disproportionate to the issues at hand. I am appealing that judgment.

My main concern at this point then is the money judgment. I don't desire to stay so if I move out there won't be need to require a stay on eviction proceedings. Landlord's attorneys have repeatedly countered the stay saying it was to delay on eviction proceedings.
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Postby Landlord's Boy » Thu Dec 10, 2009 3:20 pm

TN, I think the OP needs a good tenant lawyer to set him straight on what happened in court and what his current obligations are.
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