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Understanding Lease Holdover Clause - Month-to-Month

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Understanding Lease Holdover Clause - Month-to-Month

Postby Xebec » Tue Dec 03, 2013 1:18 am

I would like to request some assistance in understanding my lease's holdover clause in light of the wonderful information I've found here.

Basic Facts:
- My family is a month-to-month tenant in a two family house in Queens, NY. Landlord lives downstairs.
- We've been month-to-month for over 4 years, based on the holdover clause in my lease.
- Lease states that the terms lasted through October, 2009

According to the reference section, "Saying a person is a month to month tenant with a lease is like saying someone is almost pregnant." "A month to month tenancy by definition means there is no lease. "

My Lessee Hold Over Clause states:

"If Lessee remains in possession of the Premises with the consent of the Lessor after the expiration of this agreement, a new tenancy from month-to-moth shall be created between Lessor and Lessee which shall be subject to all of the terms and conditions hereof."

If, by definition, month-to-month implies no lease, can this holdover clause allow the landlord (or me) to enforce the other clauses of the expired lease?

I'm asking because there is language in the lease about the Landlord needing to give two months notice to my family to request us to vacate. I'm trying to determine if this is still in effect.

Thanks in advance!
Xebec
 
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Joined: Mon Nov 26, 2007 1:02 am

Postby TenantNet » Thu Dec 05, 2013 9:43 pm

A few things here... first, in a 2-family home, the tenant is not rent stabilized, which would require 6+ units.

You refer to two posts:

http://tenant.net/phpBB2/viewtopic.php?p=42173
and
http://www.tenant.net/phpBB2/viewtopic. ... 2172#42172

A tenant can be Month-to-month (M2M) generally in two different ways: 1) there never was a lease, or 2) there was a lease and it's expired and the tenant has continued to rent the unit without a lease renewal with rent being accepted by the LL.

You say there was a lease that expired in 2009. You are not M2M based on any clause of the expired lease, but because you continue to rent when the former lease expired and the LL continues to accept your rent.

Often the terms and conditions of the expired lease will carry forward. For example, if the original lease prohibited pets, then the M2M tenancy would also prohibit pets unless changed somehow.

When the tenant holds over, what is created is a M2M tenancy, not a lease in the broad sense. And the new tenancy would have the terms of the prior lease.

Some would say it's a one-month lease that gets renewed every month. There's some truth to that, but it's not a 1 or 2-year lease.

The quote you cite is a broad generalization, but still true. There are instances where a provision of an expired lease still carry weight. But for that to happen, the lease must explicitly state that the clause will survive the lease. One example is a non-disclosure agreement in some contracts (often employment situations). Often, attorney's fees provision in an expired lease can also remains enforceable.

As for the vacate rule, I would say generally that should still hold, but even if you had a legal scholar to support that idea (and we're not legal scholars), if the LL disagrees, they can disagree in court. Chances are it would take much longer than two months to litigate that question. Also, note the law requires a one-month written notice in NYC to M2M tenants, unless a lease provides for a longer term. The lease can expand the notice time, not shorten it.

And any such notice needs to be in writing and would not take effect until the first rent payment date that occurs 30 days from the date of the notice. For example, if you got a notice today (12/5/13), then it would not take effect until February 1, 2014.

Some of the terms and conditions of an expired lease remain in effect even after the lease expires. The tenant should carefully read the entire lease to see if it contains any provisions about should happen when the lease expires.
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