Landlord and Tenant

May 6, 2016

House Rentals in New York- Legal Issues to Consider

Some of our clients have a reason why they will not live in their house in New York for a particular period of time. Perhaps an employment assignment in another location has caused the homeowner to leave the area for a set period of time and the homeowner intends to return to the house. Maybe the homeowner is downsizing, but the sale market is not strong enough to command the price sought by the homeowner. For those intending to rent their home, we wish to convey the following advice.

We suggest that you have professionals involved. Engage the service of a licensed real estate broker. The fee, usually one to two months’ rent, is a relatively modest amount to pay to insure that a professional locates a reliable tenant. If you decide to forego the services of a real estate agent , make sure that you carefully evaluate the proposed tenant by obtaining references from prior landlords and perform a credit check. Whether the tenant is located by a real estate broker or by your own efforts, trust your instinct if the tenant raises any concerns whatsoever and do not rent the house to such a person. Prior to the delivery of possession, walk through the house with the tenant, in order to show how appliances work and to document conditions together.

We also recommend that you engage the services of an attorney to have a lease drafted by a professional. A professionally drafted lease is important to have for several reasons. It will clearly identify the appropriate provisions, even if the relationship with the tenant ends up going smoothly. Your attorney will be prepared to cover changes in the law that the landlord may not be familiar with, such as the requirement to advise the tenant whether an automatic sprinkler system is present at the premises. In the event that a legal proceeding is required against the tenant for non-payment and other matters, having a professionally prepared lease will most likely cover items that protect the landlord in such a proceeding. If you intend to rent the house repeatedly, you may want to ask your attorney to also provide a form that can be used by you in the future as your needs warrant.

April 6, 2016

Assignment of Commercial Leases in New York

By Weiss & Weiss

Our firm is often involved in landlord-tenant situations involving assignments of commercial leases. What this means is that one party to a commercial lease (usually the tenant) wishes to transfer their rights and responsibilities to a third party, either an individual or company who is not a party to the original lease. Most often this occurs when there is a potential sale of the business associated with the lease.

For example, a commercial tenant operates a car repair business and has a lease for the business for a period of five years. A third party approaches the business owner and offers to buy the business. As part of the purchase, the lease needs to be assigned from the current tenant to the purchaser of the business.

The main legal issue relates to the lease itself. Most, but not all, commercial leases contain a clause allowing assignment of the lease to a third party with the consent of the landlord. They may also state that such consent is not to be unreasonably withheld or delayed. Some leases will further delineate what “unreasonable” may entail. For example, it may state that it is not reasonable to refuse consent to a purchaser who intends to operate the same type of business as the current tenant, assuming they have the financial standing to assume the lease.

February 11, 2016

Getting Engaged this Valentine’s Day?

By Weiss & Weiss

Are you planning to get engaged this Valentine’s Day? While legal concerns may not be particularly romantic, our firm offers the following legal advice pertaining to issues that arise upon marriage in this post. Legal issues arise whether it is a first or second marriage and may become more complicated if there are children from a prior marriage.

Estate planning matters should be considered. If you do not have Wills, it is prudent to consult an estate attorney to develop the appropriate estate planning documents. Wills, trusts, and health care directive documents may be drafted on your behalf. Even if you already have estate documents in place, the beneficiaries and fiduciaries could be different now that you’re engaged. The persons that you select to make health care decisions for you are also likely to change.

If you have children from a prior marriage, provisions should be included in your Will to include a testamentary trust . Your new spouse would be afforded the opportunity to use some of the assets during her life, with the balance left to your children from your prior marriage. Without such a trust, your spouse could remarry and leave monies that you intended for your children to someone else. Also, consider how your estate plan should address personal property. If there are family heirlooms that you would want your children to inherit, rather than your spouse, you should have your attorney specify the particular items in your Will.

January 22, 2016

Unlivable Conditions in New York Coops

By Weiss & Weiss

Many legal issues arise in New York relating to rental apartments. Disputes between landlords and tenants are extremely common, and have been discussed in many posts on this blog. Extremely prevalent are situations in which the living conditions of the apartment have deteriorated to the point where the apartment may not be suitable for an individual or family to reside at the premises.

When this occurs, legally, it is considered a breach of the “warranty of habitability.” Whether or not it is explicitly stated in a lease or other document, every dwelling place has an implied warranty of habitability, meaning that the responsible party must insure that the space is livable. Certain conditions which may cause an apartment to be unlivable are lack of heat (especially during the winter), water leaks causing flooding conditions, roaches and other vermin, and excessive noise. This is not an exclusive list, and other conditions may arise which could cause a landlord to be in breach of the warranty of habitability.

However, a question arises when the apartment in question is a cooperative unit. In such situations, the owner of the shares allocated to the apartment unit is usually the same person residing at the premises. In essence, they are both landlord and tenant. What happens legally when such a unit has severe problems which cause them to be unfit for human habitation? Our firm has been consulted by many clients in such situations. The first issue to be resolved is the responsible party for the conditions. Every cooperative has a proprietary lease, which is a document that defines whether the cooperative corporation or the unit owner is responsible to correct certain conditions. For example, a cooperative apartment may have windows which have deteriorated to the point that they no longer seal and keep cold air out of the apartment. The proprietary lease needs to be examined to determine whether the cooperative corporation is responsible for replacing such windows. Other conditions, such as excessive noise, or poor sanitary conditions at the building, may also be the responsibility of the cooperative corporation, rather than the individual owner.

January 7, 2016

Legal Issues Relating to Private House Rentals in New York

By Weiss & Weiss

Many of our firm’s clients own private houses in Westchester County, in Brooklyn (Kings County), the Bronx, and Queens County. These may be one or two family houses, and many of these houses are part of the rental market, rather than owner-occupied. Renting a private house involves many legal issues that may not occur in an apartment rental. These issues will the subject of this blog post.

The first issue relates to a written lease. Many apartment rentals use a standard form lease (which may be a rent-regulated form lease), or no lease at all. It is important when renting a private house to have a qualified attorney prepare a written lease specific to the property to be reviewed and executed by the tenant. The reason for this is that while there are standard Court practices for apartment rentals (particularly if the apartment is rent-regulated) house rentals are more specific and unique. Therefore, it is important for anyone renting a house to have a lease which will incorporate the specific requirements for the rental, as there are fewer standard terms. Some of the issues to look at are the length of the lease term, whether the lease can be renewed after it expires (as opposed to rent-regulated apartments, in which a renewal right already exists), the amount of the security deposit, responsibility for maintaining the property, and other terms which are specific to the house being rented.

For example, many houses have older appliances. The written lease needs to state who is responsible for maintaining the appliances, and who will incur the expense of replacing a major appliance which no longer works. Further, a landlord may specify who needs to have the appliance serviced and the allocation of repair expenses should be negotiated. Many landlord-tenant disputes in private house rentals relate to the condition of the appliances, as well as heat and air conditioning systems. The lease should specifically delineate each party’s rights and responsibilities for these conditions.

December 3, 2015

Landlord-Tenant Eviction Action in New York – Holdover or Non-Payment?

By Weiss & Weiss

Our firm frequently represents both landlords and tenants in eviction actions. Unlike many law firms who specialize in only representing landlords or only defending tenants, we recognize that valid legal issues and valid defenses may exist for both the party owning a given property and the party who may be renting the property. This blog post will discuss the basics of an eviction action, and may be viewed from the perspective of either a landlord or a tenant.

Eviction cases in New York State are classified as either holdover actions or non-payment actions. They cannot be both. When the landlord (who is usually called the “petitioner”) decides to file a petition for eviction in the appropriate court, the landlord’s attorney must decide whether the case is a non-payment action, or a holdover action.

A non-payment action is an action for eviction based on the tenant’s failure to pay rent as due. The rent due may be based on a written lease, or simply an oral agreement between the landlord and the tenant. For example, a tenant enters into a lease to rent a house for $6,000.00 per month. The tenant then does not make the rent payments as due. Our attorneys will usually advise the landlord not to proceed with a non-payment action until several months’ rent has accrued. The reason for this is that a tenant may always end a non-payment action by making payment. Once any and all rental arrears are paid by the defaulting tenant, the non-payment action will be dismissed by the Court and the tenancy will continue.

November 5, 2015

Arbitration as an Option to Resolve Legal Disputes in New York

By Weiss & Weiss

A recent series of articles in the New York Times discusses the growing prevalence of arbitration in resolving legal disputes. This blog has previously discussed arbitration proceedings in the context of New York Yankees slugger Alex Rodriguez (hereinafter “A-Rod”), discussing his attempt to reverse an arbitration ruling which upheld his long suspension. As baseball fans are aware, A-Rod was unsuccessful in having his suspension overturned, and ended up sitting out the entire 2014 season, and returned for the 2015 season, leading the Yankees in home runs.

A-Rod aside, the issue to be discussed is whether arbitration may be a better vehicle for dispute resolution than the traditional court system. In arbitration, parties agree to submit a dispute to a neutral, third party arbitrator, rather than to the court system. The first issue is the arbitrator to be utilized. Many contracts will state that the dispute should be submitted to a local branch of the American Arbitration Association (AAA). The AAA will generally supply a list of arbitrators with expertise in the area of the dispute, and the parties are allowed to rule out any arbitrators who may have a conflict of interest.

Other agreements may allow the dispute to be submitted to a religious tribunal, such as a Beth Din. This usually occurs when the disputing parties are members of the same religious group and prefer than their dispute be heard by members of their group, rather than in the Court system. Of course, if one of the disputants is not a member of the group, they may feel that they are at a disadvantage when the dispute is heard. Another aspect is that a religious arbitrator may apply religious doctrine and scripture, rather than civil law, in making their decision.

October 29, 2015

Evictions and “Stuff” Left Behind by Tenants in New York

By Weiss & Weiss

Prior blog posts have discussed the possibility of terminating a lease prior to its legal end date. However, in a residential setting, such a situation is not always cut and dried. If there is no formal document, executed by both parties, terminating the lease, then the lease between the parties may still control the situation. This blog post will examine the different possibilities, and advise both landlords and tenants regarding the disposition of property left behind by a tenant.

Our first example would be when a tenant simply leaves the premises, but does not advise the landlord in writing that he is moving out. In such situations, the tenant may also leave behind personal property at the rented premises. The first question is whether the tenant has legally abandoned the property. If the tenant does not return the keys to the landlord (or their attorney) and state in writing that they are surrendering possession, then they are still considered a legal tenant and the original lease will still control the landlord-tenant relationship.

Even if it appears to the landlord that the tenant has moved out, in the absence of a formal surrender, the landlord will still have to legally evict the tenant. This means service of a Notice of Petition and Petition of Eviction, obtaining a warrant of eviction in Court, and then having the City Marshal or Sheriff serve and execute the warrant. This will give the landlord legal possession and allow the landlord to dispose of the personal property left behind by the tenant. If the landlord decides not to follow this legal procedure, the tenant could return, and claim that they did not formally surrender possession. The landlord in such a case could be liable for an illegal eviction, as well as the cost of replacing the disposed-of property.

October 8, 2015

Settlement of Partition Actions in New York State

By Weiss & Weiss

Prior posts on this blog have discussed the general aspects of property partition actions. A partition action arises when there are two or more owners of real property, and the co-owners cannot agree on the disposition of the property. The property may be residential or commercial in nature. This blog post will discuss possible out-of-court resolutions to a partition action.

A partition action may be brought by any of the co-owners to force a sale of the property, with the proceeds being divided among the owners according to their percentage of ownership. However, it is a fact that most lawsuits are settled prior to trial or another resolution by a Court. In a partition action, there are several alternatives to explore when deciding to resolve a case without the need for further Court intervention.

The first alternative would be for the parties to agree to sell the property to a third party who is not one of the current co-owners. In such a situation, the co-owners should agree on sale terms, and, in most situations, hire a professional real estate broker to list and show the property in question. The parties would also agree to share the costs of the broker, which is usually a set percentage of the sales price. It is advisable at this stage that a formal written agreement, usually called a “Stipulation of Settlement,” be entered into between the parties. Such an agreement should contain an initial listing price for the property. It should also state that any offer at or above the listing price will be accepted by all of the owners. In the event that the property cannot be sold at or above the listing price, the agreement should also delineate a set period of time in which the parties will attempt to sell the property at the initial listing price, such as three months. After this time period expires, the agreement should state that the listing price will be reduced by a set percentage, such as five percent. This will allow the property to be sold at a price acceptable to all parties, and will prevent any co-owner from refusing to sell the property. Our firm has handled many partition actions and has a standard Stipulation of Settlement that contains the necessary clauses for an effective resolution.

July 16, 2015

Evictions and Warrants of Eviction in New York State

By Weiss & Weiss

Many of our clients are landlords who own only one property, such as a single or multi-family house or an apartment. Although they may be renting to a tenant, it is not their primary business or livelihood. As such, our firm is often asked to assist in removing a tenant due to a default under the lease, or due to the expiration of the lease in question. As discussed in a prior blog post, a Court proceeding is necessary in order to gain legal authority to evict a tenant.

The legal document allowing an eviction to occur is known as a warrant or warrant of eviction. It is similar to a judgment, except that instead of stating that a certain sum of money is owed, it states that the landlord has the legal right to evict a tenant. A warrant can be obtained in several ways during a Court proceeding. If the parties agree to settle a landlord-tenant action, the tenant may agree to vacate by a certain date. A condition of such agreement (known as a Stipulation or Stipulation of Settlement) would be that if the tenant does not vacate voluntarily, the landlord is entitled to a warrant of eviction. Often, the agreement will allow the warrant to be issued immediately, but the parties will agree to stay, or delay, enforcement of the warrant until after the date on which the tenant agreed to vacate the premises.

The Stipulation allows the landlord to have a warrant of eviction, but gives the tenant a reasonable amount of time (usually a month or two) in which to vacate. A crucial part of such an agreement is also that the tenant must pay use and occupancy during the period of time between settlement and moving out. Use and occupancy is a legal term which applies to rent paid after the tenant has agreed to surrender possession. The agreement will usually state that if the tenant fails to pay such use and occupancy, the warrant may be executed immediately upon notice of default sent to the tenant, rather than on the later date previously agreed to by the parties.