Wednesday, January 25, 2006

Landlord/tenant myth-information

A few posts back, I presented the idea of a column on some of the biggest myths in landlord/tenant law. The feedback on the idea was less than overwhelming, as I had expected. However, since it’s an area of law I really have an interest in and feel that many people don’t understand, I wanted to post anyway. Two caveats (lawyerspeak for “warnings”) before we begin: first, I can speak only to upstate New York, as NYC and other states have separate laws, and two, a lease between the parties can often create/transfer powers and duties in a different way that what I’m writing below. And, as always: the commentary below is intended to be of a general educational nature on New York law and is not offered as nor should it be taken as legal advice.

1. Landlord: “It’s my house, so I can do what I want.”
Not true. If you lease a car, Billy Fuccillo can’t come use it whenever he needs a ride around town. If you’re staying in a hotel for the night, the management can’t put another couple in the same room if they are overbooked. Those are only examples by analogy, but the main point holds up. When you rent a unit to a tenant, you are giving that person a right to use the premises as if they owned it. Obviously the tenant doesn’t own the property, and the owner still has rights and obligations related to the underlying title to the land, including the ability to enter for inspections, repairs, etc. The catch is that entry needs to be on reasonable notice as the tenant has the right to sole use and possession of the property. Entering without permission, even if you own the property, can still make you a trespasser in the eyes of the law.

2. Tenant: “I can’t be evicted, I have small children.”
Not true. The Real Property Actions and Proceedings Law contains no mention of family composition. If you are a tenant who has done something to breach the obligations you have to the landlord, then he or she can have you evicted regardless of your family size or composition.

3. Tenant: “I didn’t get thirty days notice.”
Not required in every situation. In a nonpayment situation, the entire eviction process can be over in eleven days. The first step is a three day notice, to “pay or quit.” Once you get this notice as a tenant, you have three days to pay up or get out. At the end of those three days, if you haven’t, then the landlord can have you served with court papers (a Petition and Notice of Petition are the court documents in an eviction). Court is then five to twelve days after service of the papers. If you go to court and lose, for whatever reason, the court will issue a warrant of eviction. Once this document is served on you, you then have 72 hours (three days) to get out or you will be put out by the sheriff/marshal/constable. Minimum time from the first “pay up” to the final “you’re out”: less than two weeks.

Just to confuse things, there is a “thirty day notice.” If the landlord or tenant wishes to terminate a month-to-month tenancy, either party can give the other this sort of notice. What is confusing is that, in upstate New York, it isn’t literally “30 days” but “until the end of the next full rental period.” The point I wish to make here, though, is that this isn’t required in every situation.

4. Landlord: “I’m changing the locks if you don’t pay up.”
Above in paragraph 3, I mentioned a process for eviction in a nonpayment situation. This is the procedure a landlord should follow. New York has outlawed self-help eviction. That means changing the locks, turning off the utilities, taking off the doors, putting possessions on the curb, etc. Any of those sorts of behaviors can be cause for the tenant to sue for treble (triple) damages for any costs and expenses associated with the illegal eviction. Eviction in New York can only be accomplished by court order, requiring the filing of a petition with the court leading to a hearing before the court.

5. Tenant: “She can’t raise my rent that much/that often.”
Not true. In upstate New York, there are no rent-control or rent-stabilization laws. The landlord is free to charge whatever the market will support. However, if there is a lease, both parties are bound to the amounts agreed upon in the lease (except, of course, if there is language allowing rent changes.) Even an oral agreement, though, is a contract under the law, and one party can’t change it singlehandedly. If the landlord wants to raise the rent, he/she has to give you notice. If you agree, then a revised contract is formed. If you don’t, and you pay the original amount, the landlord can’t evict you for not paying the difference. He or she can give you a 30 day notice that your tenancy is terminated, however. The landlord also can’t raise the rent as a retaliatory action. For example, if you called the Health Department because of a roach problem and the landlord now says your rent will go up $200 a month, you should consult a lawyer. Changing the conditions of tenancy as a result of a tenant exercising rights to insure a safe/healthy premises is illegal. However, there are a great many valid reasons why a landlord might increase the rent, and generally there are no restrictions on this action.

There, in brief, is a spin through five landlord/tenant questions I see in my daily practice. As I said, this is not meant to be legal advice—if you have questions, find a local lawyer who can tell you how things operate in your neck of the woods.


Blogger Joel H. Seachrist said...

Good info, Todd- those all sound familiar.

9:11 PM  
Blogger bbloo said...

I really liked this post. Good info in an easy to read format. Having been a renter, it's good to know just what the landlord can and can't do. Also, I knew a landlord who didn't think he could just kick people out on the street because they said he needed to give them 90 days notice. They hadn't paid the rent in three months! He was such a softie...
Thanks for the info!

3:55 PM  
Blogger York Staters said...

Thanks for the post, definitely useful ;o)

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Anonymous Anonymous said...

Loved your post. How does it work when there is no lease and the people were invited in by the actual tenant who has since left, no lease is in place and never has been. they're basically just squatting and refuse to leave.

12:11 PM  

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