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interesting case perhaps? You decide and comment

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interesting case perhaps? You decide and comment

Postby nymtnbiker » Wed Sep 05, 2007 2:42 am

First post here, though I have been reading up on some of the forum posts and links now for a little while. I have a bit of a situation, possibly interesting and quite complex. Would love to get some input from people in the know here before I make the next step of actually paying a retainer to my real estate attorney.

Back in Feb or March of 2004 my brother and I moved into an apartment, and signed a 15month lease. This was a cookie cutter lease from the Staples prepackaged legal forms section. Both our names are on the lease, both of us signed, and a security deposit of 1.5 months rent was paid. The 15 months term was specific to get us out of the trying to find an apartment in the dead of winter in upstate NY. My brother had moved in with me previously shortly after he got out of a 6 month treatment program for Alcohol abuse, and we figured that living together would be good to help keep him on the right path, this is only a minor detail till later :-/

My brother mid lease took up his old ways and decided to move out on his own so that I wouldn't be there to keep him in line. Well when he did this there was no change to my lease, infact, my original lease stated that at the end of the term it would go to month to month, something I liked since it had no stipulations on additional rent for month to month. My brother has been in and out of programs since I'd say Jan 05, and I have been paying the entire lease and utils, though the Gas/Ele are still in his name as National Grid will not change them without a notarized letter from my landlord saying that I am the sole tennant, or a new lease. Both of which my LL had not been inclined to do. So I pay the bills and life goes on.

Now april of 2006 rolls around, my LL had tried to sell the building for a ridiculous amount, at the peak of the "real estate bubble" mind you this is a 1890 built side by side duplex, with 720sq/ft per unit. Been renovated at some point, but he bought the place in 03 for $110k, and has a tax assessed value of $92k, all on .66 of an acre. Well after he tried to sell and it didn't move, and a tennant was moving out, he offered it to them (they were moving out so they could rent to own) for $170k which he claimed it had just been re-appraised for, in april of 06. Course at this point I still had no lease term, just month to month. I had a bit of money stashed away and approached my LL about possibly buying. I had worked my credit to a point that I could get a mortgage, and the goal was to stop paying rent. Well I was given a $180k price and a bunch of talk that we should get a contract signed very soon. Well that was the first part that didn't sit right with me, and I took some time to educate myself a little to all this.

Then on July 3, 2006 my father suddenly decided to take his own life, and I had only spoken to him a mere 3 days before and he sounded like things were looking up in his life. When this happened I informed my landlord that I was out of the home buying market till I got passed this, especially since my father lived in FL, and I lived in NY. He owned a house with his brother, there was no will, and I being the eldest child the responsibility for everything fell to me.

Well a few months passed, and I was back and forth to FL a number of times dealing with his estate, and as things began to settle down, my landlord hounds me about buying the house. I'd say sometime in october, and I told him that things were beginning to settle down and that I've just lost the last 4 months of my life due to dealing with my father, not to mention I had used a good portion of my savings while I was off from work to deal with everything. He then a few days later brings up that a friend of his is interested in the house, saw it when they first bought it and is looking for something like that, and since I didn't have a lease they'd want to move into my side if I didn't buy, soon. I knew that was BS, and there was no way I was being rushed into a hasty purchase in a market that was already beginning to correct itself, not to mention I had a Realtor give me an assesment and she didn't believe the house was worth much over mid 150's even at the peak 18 months earlier.

Ok so nothing went on with my LL till May when my neighbor asked to break his lease early to move in with his girlfriend. One month early mind you, and I found the tenant for my LL because I thought I'd have owned the house by now and my neighbor was a friend of mine. The landlord agreed, and then a few days after he moved out, my LL starts comming to me again about buying the house, and now the price is $185k and the same "interested party" is now magically interested again. Well I had just about recouped the financial hit from my father's passing, and been back to work for a few months to replenish the savings when this comes down the line. Still no major movement from me on the matter other than talking with a real estate attorney for a few minutes (wanted to get a feel for him if I was going to have him represent me in a purchase) and discussing the matter with a new friend that is a realtor. I knew that once I had a certified appraisal done and it came in much below my landlord's price, then it would move forward.

Ok enough backstory. You bored yet? Well here is where it gets good.

On June 25th I received a certified letter, from my LL's attorney, mind you the letter was addressed to ME ONLY, basically stating that if I didn't accept the purchase price of $185k non-negotiable, with 10k deposit and a closing date before September 17th, 07 that my LL were electing to terminate my month to month lease effective July 31st, 07. I was given a 10 day window in the letter to make me intentions known to either my LL or his attorney.

Now I wanted to buy this property, I have lived here a while, and at $140-150k it is a worthwhile investment, and I should really stop renting and start owning. So I had drafted a letter to the LL's attorney indicating my intent to purchase, but could not put down a $10k deposit within the 10 days alloted, nor could I accept a non-negotiable price without a full certified appraisal. The morgtage company told me that much, they aren't gonna loan me $30k over the appraised value without good cause.

Before I could even mail that letter off, my LL called up and left me a voicemail on the 5th of July saying that since they hadn't heard from me he was moving ahead with his "other buyers". Now from the 25th to the 5th is 10 calendar days, with a holiday in there, but in the terms of getting things done for a house purchase everything I have read says that business days are assumed unless specified in writing. So he basically pulled the offer, which is also about the time I made an interesting discovery at my apartment.

Turns out that because of his pushing me, I decieded to do my own inspection of the house to make a list of things that an inspector would look at to be used as $$$'s off the price. I found a double shared metering situation. My electric is powering a pair of lights in a hallway that is a shared area. The shared area is to the front door of the building and I do not have exclusive control over this. Furthermore I found that my neighbors gas hot water heater was heating my bathroom sink's hot water. Now both of these situations had gone unknown to me till he stepped up this time table. I called him and made mention of this fact, and that I am pretty sure I have to contact the utility company to have them investigate, he didn't say anything to that and was silent. I said ok I've let you know and goodbye.

Knowing this and knowing that after living there 3 years there was no way in hell I could move out in 30 days, I didn't do anything, except talk a little more with my attorney about my next steps. I mailed in my August rent, certified mail, which he recieved, but has never cashed. I knew this to be a "sign" of what was to come. I knew he'd prolly move forward with eviction even though I have been paying the rent.

the paperwork from National grid comes, I fill it out, but they have not scheduled an inspection yet, now this shared meter aspect has been going on for 3 years almost, and the same with the hot water thru 3 tenants. Still haven't heard anything from him till tonight. I left of August 25th to drive my grandmother from NY to her winter home in Naples, FL. My grandfather passed away in Jan, so I was the one family member that could come down here with her and help her get settled back in by herself. I'm due to arrive back home on the 6th at 7pm or so.

While I have been gone it seems my LL's attorney filed with the court for an eviction. Citing that the lease was terminated on June 25th of 2007 and that I am a hold over after the lease was terminated in writing with 30 days notice. Also my name is the only name on the paperwork, even though both my brother and I were on the original lease.

Ok so now comes the questions, bear in mind I have a LandLord/Tenant attorney lined up, but have not retained him yet because I was waiting to see if my LL would blink or if he was serious. Well it appears he may be serious, which means I will prolly be paying for an attorney, and I most
likely won't be buying this house, less he backs down. Ok questions

1. Since the letter he sent to me on June 25th gave me a 10 day window, doesn't that technically constitute less than 30 days notice to vacate?

2. Since the letter of the 25th was only addressed to me is it even legit since there are two names on the lease? Constituting basically not notifying the other party on the original lease to the matter of vacating the house.

3. Because he has moved forward with eviction, do I potentially have a case for him doing that in retribution for reporting him to National Grid for the shared meters?

4. The eviction paperwork only names me, but specifies that there is a written lease, and specifies that there is no amount being sought other than the surrender of the apartment. Is it even valid, because there are 2 names on the lease?

5. Doesn't he have to file something with the court giving me 30days notice to vacate, after which then eviction proceedings could then start? Not sure about this from what I have read because of my being month to month.

6. Are there rules for being served the information on an eviction, and court date, ect? I have been in FL since the 28th of August, and a friend today just went by my place to bring my mail inside. He called me up and told me there was a notice tapped to my side garage door (not my apartment door) that I have to be in court on Sept, 6th at 8:30am. I found out about this tonight, thankfully my friend had kinko's scan and email me a pdf of the court papers.

Now the garage door where it was taped is not mine only. It is a shared door for both tenants to access the garage. Furthermore, there was a certified letter attempt on August 31st, but I was not home so the postal carrier left one of those little sorry we missed you tags. Again, I didn't find out about this till the 4th. Paperwork says this was filed for on the 17th of August, and recieved by the court on the 23rd. I find it hard to believe that having a taped copy of this attached to a door is sufficiently "served" with notice, especially since it wasn't put there till after this weekend, cause my friend brought my mail in the morning of the 31st for me and there was nothing there.

So now it has become more of a personal battle. I'd gladly move if that's going to be the end result, but packing up 3 years, a garage full of tools, and a few vehicles, while finding a new place to live was never going to happen in 30 days. Which my LL knew, and was banking on me just capitulating to $185k price and not having a fight on his hands.

So thoughts, comments, things I should know? Right now I am of the mindset to make this as long and drawn out as possible. I know the shared meter will be found in my favor, and that will cost him. I have also contacted all the past tenants of the other apartment, and informed them of my findings about the hot water. One was quite mad, and always thought his gas bill was too high for a single guy. They all want to file in small claims court, but I told them to wait till after National Grid did their investigation.

The way I read the law, it seemed to me that after his letter of the 25th and I didn't leave, he had to file a 30-day demand to vacate with the court, then after that he could move forward with eviction. Course I have been paying my rent, even if he doesn't cash the checks, so he can't site non-payment. I also wanted to bring up to the court if it got that far what I felt was borderline extortion telling me I have 10 days to buy at such and such a price or the month to month is terminated.

The attorney I spoke to told me that just from the 15 min conversation, first and foremost the LL prolly didn't provide proper notification because of the 2 names on the lease. He told me I should see my LL's next move before I paid him a retainer, which I thought was a great idea cause it showed me he just didn't want to take my money right off especially if my LL might be bluffing.

Ok I'm rambling now, but I needed to put it out there so someone could look it over that has more experience with these things. I know the answer is going to be hire the laywer, but should I call the court and ask for an adjournment till I am back in the state? Since there was no physical service of the paperwork, and I can prove when I left and when I will return, I don't think that should be a big problem, especially since notice was haphazardly left taped to a door (not the dwelling door) with intentionally short notice. I don't even know if I should mention to the court that the paperwork filed is completely in error since there are two names on the lease. I guess I should use that if they deny the request for an adjornment.

Ok I'm gonna stop now. Hopefully I can go to sleep now that it's 2:41am.

Thanks in advance for any help, as it is this place has provided some good links already to help me understand the law regarding this stuff.[/list]
nymtnbiker
 
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Joined: Wed Sep 05, 2007 12:58 am
Location: Upstate, NY

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