Monday, June 18, 2007

Landlord/tenant myth-understandings.

Two quick items, to continue the ongoing thread of posting on this area of law. As always, I'm picking things that have come up repeatedly.

First, I'd like to address the topic of the security deposit. Namely, the return of said deposit. In New York, there is not a specific timeframe for return. Emphasis added to try and make the point: NY law does not set out a 10, 15, 30, 45 or 60 day period for return. New York law says a "reasonable time after the tenant has vacated" and that's all the guidance that's in the statute. Note that not only isn't there a time set by statute, but the period begins running after the tenant has left. Quite often, I encounter tenants who want to use the deposit from apartment A to pay the rent at apartment B when they are moving. Some landlords may be willing to work something out, but tenants should understand that there is no requirement that the money be returned on a specific timeline. Cases has established different time periods that are "reasonable" and interested persons should look for the cases in your jurisdiction, or consult an attorney.

A topic for another post will be costs and fees that can be legitimately deducted, but I'll save that for another time.

Second topic of the day is the gnarly world of "abandonment." These two topics are matched today because they share something in common: the lack of a set statutory period. Quite often, I hear people say that Tenant X hasn't been there in 30 days, so they can reenter, throw out belongings, rent to another party, etc. I have had many landlords quote the 30 day number to me as if it is inarguable Gospel. Fact is, it's not in the laws of New York. Unlike security deposits, with the rough guideline of "reasonable time", there isn't even that much in the law concerning abandonment. Case law (see, for example, Hackett v. Roos, 196 NYS2d 197 (Sup Ct, Nassau Co, 1959) has established a two part test, somewhat widely applied, that the tenant must (1) have intent to abandon and (2) engage in some act/failure to act that shows a lack of interest in the premises.

In a word, abandonment is messy. A tenant might be hospitalized, in jail, staying with sick relatives, etc., and not around regularly, yet could show up out of nowhere and still have a legal right to enter the premises and claim belongings. Many people in the legal field also misunderstand the timeline. Apparently, it's common to combine "the time a landlord should store abandoned property" and "the time a tenant is gone from an apartment" into a single rule. If in doubt, consult a lawyer.

Duke DA Disbarred

A cautionary tale for any attorney trying to make a name for him/herself in the press. Nifong, appointed to the office and running for election for the first time to retain the job, was recently stripped of his law license.

Not to excuse his prosecutorial misconduct, but the Jamestown Lawyer has always been somewhat perplexed by campaigns for the office of DA. In order to get elected, one has to pretty much be a fire & brimstone "lock them up and melt the key and then make them eat it" sort of candidate, on whatever the hot button issue of the day is. No one is ever going to win the office by saying "Well, I have concerns about sexual offender civil incarceration, and I feel as a percentage of criminals they are a small portion of the problem, considering the recidivism rates found in our drug offenders locally." That sort of answer, or one equally frank, earns one a continuing private practice and not the office in Mayville (or Canton, Buffalo, Lake Pleasant, Lowville, Lake George, etc.)

Friday, June 15, 2007

Supreme Court

There are likely no more scrutinized judges in the world than the U.S. Supreme Court judges. From childhood events to papers written for classes in undergrad days, everything about them is scanned for some indication of leanings, beliefs and ideologies. A recent article on a criminal appeal is based on "understanding" the divisions in the court.

I find this interesting, as I do anything about the top court. Yet at the same time, very little of what I do in my legal day is directly controlled by a "U.S" cite. Where are the articles and opinion pieces on "A.D." or "NY" judges who are deciding the cases I'm reading, citing and arguing?

The JPD Blog

The above title is facetious, given the trend of posting on police-related topics. Today's Post-Journal, though, has an interesting look into the department disciplinary process. What interests me the most about this is that the alleged improper statements aren't discussed, although there is mention of the public nature of the hearing. Mr. Subjack's "good ol' boy" defense of "everyone does it, but they don't get written up" (see previous posts on Oficer Mike VanWaldick in Watertown for more on that) doesn't set well with me, but I'm curious if these were purely malicious comments or something with a grain of truth that also deserves the light of day.

Friday, June 08, 2007

Jamestown's Watson Case

After a break, there have been a couple of articles in the P-J lately concerning the ongoing case of Michael Watson, a former Jamestown Police Department officer who is accused of various stalking/harrassing offenses. The latest is a somewhat novel development, worthy of highlighting. The prosecution has filed an Article 78 proceeding against the judge based on a ruling excluding certain evidence. An Article 78, named for its location in the Civil Procedure Law & Rules (CPLR), encompasses many of the old fashioned "writs" a court could issue to enforce/stay actions when a governmental authority was acting in an improper fashion. The writ of mandamus, known to all Con Law students from the case of _____ (anyone? Bueller?), is just one such example.

Tuesday, June 05, 2007

First Amendment & Building Permits

Normally, the two items above are based in separate areas of law without a lot of overlap. Journey with me, if you will, using my best Rod Serling voice, to St. Lawrence County. The issue: five Amish families who failed to obtain permits for various projects.

This is the sort of question I would often post to my Civil Liberties/Con Law students: a law that isn't related to religion on its face, but that has an impact on a specific religious group. Although, it seems (according to the article) that the Amish typically obtain permits--but that's not necessary information for the hypothetical.

From an administrative law standpoint, however, it seems there are also questions about the complexity of the permit process--if a layman can't apply, it seems that there's a flaw in the system.

Hopefully the coverage of this unique story continues.

Local Case to Top Court

A Jamestown man will take his case against a state agency to the State's top court, the Court of Appeals. This (from today's Post-Journal) is pretty decent coverage of all the legal arguments being put forward and shows the level of detail required in parsing a statute and creating an argument against the application of the statute.