Monday, February 06, 2006

More landlord/tenant

After another phone call with a client, I thought I'd return to this topic in an attempt to clarify one of those bits of law that is more complex than it needs to be. Say that you, hypothetical reader, are a hypothetical renter. You do not have a lease, but rent on a month-to-month basis. The hypothetical landlord stops by and gives you a sheet of paper titled "30 day notice," and says he needs you out by the end of the month as, hypothetically, he's selling the place and the new owner wants it vacant. But what's it all mean?

1. In upstate New York, a "30 day notice" does not mean a literal 30 days. Real Property Law 232-b, in somewhat antiquated language, specifies that tenancy outside New York City is terminated by notice "at least one month before the expiration of the term." RPL 232-a deals with termination in NYC, which is apparently a literal 30 days. What does this "at least one month" stuff mean? As a general rule of thumb, if you're served with a 30 day in one month, you have until the end of the next month. So if you get notice on February 6, and the landlord says you have until March 6, the landlord is incorrect. RPL 232-b states you have until the end of the next month, or 3/31.

Please note that the length of the month does not make a difference. The reason for this post is I, moments ago, had a client trying to tell me it wasn't a valid 30 day notice because February only has 28 days.

2. A "30 day" doesn't have to be notarized, issued by the court, or served in any particular manner. Unlike three day notices, which are supposed to be served in the same manner as a Notice of Petition and Petition, a 30 day can be delivered by a party. Unlike the Notice of Petition, a 30 day is not required to be issued by an attorney or the clerk of a court. Whether it is handwritten, photocopied from a book, or typed up on a home computer, all that matters is that the required dates are there and that the landlord signs off on it. Like 3 day notices, however, a 30 day can also be orally given.

3. A "30 day" is not required to list a reason for issuing, or even to have a reason. Termination of tenancy for illegal reasons, such as retaliation for calling the housing inspector, racial or other discrimination, or certain other categories can't fly, but the burden will be on the tenant in challenging a notice.

4. A "30 day" is not an eviction. An eviction (generally) is a court process in which the court hears the relevant evidence and makes a decision whether or not to grant possession to the landlord by removing the tenant. If you do not leave at the end of the time given by the notice, then the landlord can bring an eviction proceeding. If you do leave, however, you have not been "evicted" in the legal meaning of the word. I've had clients tell me things like "She evicted me six times," meaning the landlord had previously given 3 or 30 day notices. Maybe it's petty or semantics, but if you tell a lawyer, human services agency worker or potential landlord that you've been evicted six times in the last year, you're hurting yourself through misuse of the word.

5. As a tenant, you're still responsible for paying rent while living there, even if you've received notice that you have to move soon. Also common in my practice are comments like "He's evicting me so I'm not going to pay him." Well, if the rent isn't paid, you might very well be evicted in a summary proceeding for nonpayment. Once that happens, you'll get 72 hours to get out instead of 30-40 days. If paying for the current place and arranging for a new place isnt' financially feasible, talk to the landlord about it. Most would rather work out some plan, in my experience, than go through the hassle of court.

Final caveats: The above is general educational material and is not meant to be legal advice on your specific problem. Consult a lawyer if you need help. Secondly, anything that is said about landlord/tenant law is subject to revision if the parties enter into a lease, which can waive and/or create additional rights in both parties.


Blogger jackbear said...

I was waiting for the disclaimer...but well stated, thats good information. What if I don't want to pay my mortgage?

11:37 AM  
Blogger TMT said...

Then the mortgage company will foreclose. Longer process, same idea.

5:49 PM  

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