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.

2 Comments:

Anonymous Dee said...

Re security deposits and abandonment--poor drafting of the law. "Reasonable time" varies widely from person to person and that makes for a lot of problems. The abandonment issue is especially a problem. There needs to be protection for clients but also a specified time period for landlords to be respoonsible for the stuff.
A big problem is that a lot of people just think being a landlord will be a way to make extra money and they never look into the legal process until they have a problem tenant. All landlords should talk to an attorney before venturing into the field and shold count on having legal fees to pay throughout their time of being a landlord.

3:19 PM  
Blogger TMT said...

I would completely agree, and not only in order to drum up business. It's a somewhat complex area of law, given to specific timelines and procedural steps. Far too many property owners who I have encountered mean well but have no understanding of their rights/responsibilities.

11:58 AM  

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