New York Real Estate Lawyers Blog
Prior blog posts have discussed the difference between the two types of landlord-tenant eviction proceedings. To summarize, non-payment proceedings occur when a tenant fails to pay rent or other charges due to the landlord. Holdover proceedings, which will be discussed in this post, happen when a tenant’s lease term has expired, or, in certain situations, when a tenant does not have a written lease.
First, let’s discuss situations when a tenant’s lease term has expired. Most, if not all, written leases, contain a specific lease term. It may be expressed in terms of a set period, such as one year, and can also give the specific date that the lease will expire. What happens when the lease term expires, but the tenant remains in possession? Under New York law, the tenant now becomes a month-to-month tenant. This means that the lease terms remain in effect, but the lease has been extended for an additional monthly period, assuming that the tenant continues to pay the rent due, and continues to comply with the other lease terms.
By accepting the rent for an additional month, the landlord is agreeing to an extension of the lease for that additional month. Let’s say the lease expires on March 31. On April 1, the tenant pays an additional month’s rent check to his landlord, and the landlord accepts the rent, by depositing the check. Under the law, the parties now have a month-to-month tenancy, which either party can terminate on thirty day’s notice.
What if the landlord wants to re-rent the premises, and no longer wants the tenant to remain in possession? In that case, the landlord must return the rent check to the tenant. This will indicate that the landlord is not extending the lease on a month-to-month basis. After consulting experienced counsel, the landlord now wishes to evict the tenant. The first step, after rejecting the additional month’s rent, is to issue a termination notice, also called a notice to quit, to the tenant. This is a formal legal notice to the tenant which states that the lease term is being terminated on thirty day’s notice. If the tenant does not vacate after the expiration of the thirty days, the landlord’s counsel can proceed with a holdover eviction action in the appropriate local forum. At this point, the parties, through their attorneys, may attempt to negotiate a resolution to the situation. If the tenant needs additional time to vacate the premises, counsel can prepare an agreement which allows this to occur, without legally extending the tenancy in question.
Many of our firm’s clients have tenancies in which there was never a written lease between the landlord and the tenant. There may be an oral agreement between the parties regarding the rent to be paid. While we do not recommend entering into such a situation, it is possible that a landlord may buy a building in a foreclosure sale or otherwise “inherit” a situation in which there is a tenant without a written lease.
Legally, how can such tenants be removed? New York considers such tenants without written leases to be month-to-month tenants. As discussed above, such month-to-month tenancies may be terminated by either landlord or tenant on thirty day’s notice. If the landlord’s counsel wishes to terminate the tenancy, again, they must refrain from accepting the rent for the month, and have counsel issue a thirty day termination notice. If the tenant does not vacate within the time frame required by the notice, a holdover eviction action may then be commenced.
Our firm represents both landlords and tenants in both residential and commercial properties. If you encounter a “holdover” situation, we recommend contacting us for legal advice.