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Month-to-Month Tenants in NY

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Month-to-Month Tenants in NY

Postby Anna » Sat Aug 05, 2006 11:39 am

Month-to-Month Tenants in NY

Tenants who do not have leases and pay rent on a monthly basis are called month-to-month tenants. In apartments that are not rent regulated, tenants who stay past the end of a lease are month-to-month tenants if the landlord accepts their rent. (Real Property Law §232-c)

In New York City, the landlord must serve the tenant with a written termination giving 30 days notice which must state that the landlord elects to terminate the tenancy and that refusal to vacate will lead to eviction proceedings. This notice must be served according to the provisions of RPAPL § 735. For example, if the rent is due on the first of each month, the landlord must serve notice by August 1st that he wants the tenant to move out by August 31st. (Real Property Law §232-a)

A month-to-month tenancy outside New York City may be terminated by either party by giving at least one month's oral or written notice. For example, if the rent is due on the first of each month, the landlord must inform the tenant by July 31st that he wants the tenant to move out by August 31st. (Real Property Law §232-b)

This notice does not automatically allow the landlord to evict the tenant; the landlord must still begin eviction proceedings in court (see: http://www.tenant.net/Court/Howcourt/index.html ).

A landlord may raise the rent of a month-to-month tenant with the consent of the tenant. However, if the tenant does not consent, the landlord can terminate the tenancy by giving notice as required.

Search the TenantNet Forum or Housing Court Decisions for 232-a, 232-b, or 232-c for many court decisions and previous forum discussions concerning this issue



§ 232-a. Notice to terminate monthly tenancy or tenancy
from month to month in the city of New York.

No monthly tenant, or tenant from month to month, shall hereafter
be removed from any lands or buildings in the city of New York on
the grounds of holding over his term unless at least thirty days
before the expiration of the term the landlord or his agent serve
upon the tenant, in the same manner in which a notice of petition
in summary proceedings is now allowed to be served by law, a
notice in writing to the effect that the landlord elects to
terminate the tenancy and that unless the tenant removes from
such premises on the day on which his term expires the landlord
will commence summary proceedings under the statute to remove
such tenant therefrom.

§ 232-b. Notification to terminate monthly tenancy or
tenancy from month to month outside the city of
New York.

A monthly tenancy or tenancy from month to month of any lands or
buildings located outside of the city of New York may be
terminated by the landlord or the tenant upon his notifying the
other at least one month before the expiration of the term of his
election to terminate; provided, however, that no notification
shall be necessary to terminate a tenancy for a definite term.

§ 232-c. Holding over by a tenant after expiration of a
term longer than one month; effect of acceptance
of rent.

Where a tenant whose term is longer than one month holds over
after the expiration of such term, such holding over shall not
give to the landlord the option to hold the tenant for a new term
solely by virtue of the tenant's holding over. In the case of
such a holding over by the tenant, the landlord may proceed, in
any manner permitted by law, to remove the tenant, or, if the
landlord shall accept rent for any period subsequent to the
expiration of such term, then, unless an agreement either express
or implied is made providing otherwise, the tenancy created by
the acceptance of such rent shall be a tenancy from month to
month commencing on the first day after the expiration of such
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Postby Anna » Thu Sep 28, 2006 8:26 pm

September 24, 2006
Q & A
A 30-Day Notice, Then What?


Q I am a month-to-month tenant and have received a 30-day notice of termination. Thirty days is not a lot of time to find a new place and move out. Can I request an extension? How should I go about doing this? And if the request is denied, can my landlord just throw me out without finding me a new place to stay?

A “The 30-day notice of termination is the first legal step required for a landlord who seeks possession of an apartment,’’ said Jamie Heiberger, a Manhattan landlord-tenant lawyer. If a tenant does not move out by the date in the notice, the landlord can then start a court proceeding known as a holdover action to gain possession of the apartment. Ms. Heiberger noted that the letter writer can ask the landlord for an extension either before the expiration of the notice of termination or in the context of the court proceeding.

Ideally, she said, the tenant would want to enter into a written out-of-court agreement before the holdover proceeding begins, thus keeping her name out of court records. Building owners and rental agencies have been known to check them as a way of weeding out troublesome tenants.

If the landlord denies the tenant’s request for a voluntary extension, she can make the same request of the court, Ms. Heiberger said. She explained that by law, judges can give tenants up to six months to vacate, provided they continue to pay rent.

“The amount of time given by the court will depend on things like the length of the tenancy’’ she said, “whether the tenant has children in school and it is the middle of the school year, and the landlord’s reason for wanting possession.’’

Copyright 2006 The New York Times Company

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Postby TenantNet » Fri Feb 05, 2010 2:51 pm

A succinct explanation of month-to-month tenancies originally posted by NYHawk at http://www.tenant.net/phpBB2/viewtopic. ... 2172#42172

Saying a person is a month to month tenant with a lease is like saying someone is almost pregnant. neither one can possibly be true.

A month to month tenancy by definition means there is no lease. If the tenant gives the landlord an amount of money for a month's rent and the landlord accepts it, the tenant has the right to stay in the apartment for that month. If the process is repeated there is another month month to tenancy created. it is created one month at a time. there is no lease. This happens when a lease expires, it is not renewed and the tenant keeps paying and the landlord keeps accepting rent after the lease expired.

This does not apply to rent-regulated apartments.

Saying a person is a month to month tenant in a rent-regulated apartment is like saying someone is almost pregnant...

A little known tidbit: a landlord cannot sue a month to month tenant for not paying rent. If the tenant did not pay rent for a particular month, by the above definition of how the month to month tenancy is created, no month to month tenancy was created. In other words, because the tenant did not agree to pay a certain sum for rent for a particular month the landlord cannot sue the tenant for not paying a specific rent amount that the tenant never agreed to pay. Thus, a month to month tenancy cannot be unilaterally created (by just the landlord or the tenant); it takes two to tango the month to month dance.

It cannot be assumed that because the tenant remained in possession he or she implicitly agreed to be obligated to pay the last paid rent amount. That sounds logical, but it is not legal.

The landlord's only remedy is to bring a holdover and to seek use and occupancy.
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Re: Month-to-Month Tenants in NY

Postby TenantNet » Mon Sep 21, 2020 11:02 am

See this URL and any comments on this article.

Here's an interesting and just published article from Brick Underground, some of which touches on this thread.

One caveat is that according to the 2019 changes in the rent laws, depending on how long your tenancy has been, the LL might have to give you a 90-day notice if they seek to evict you -- this is mentioned below. I'll have to look it up and see how much time (if any) ahead of leaving a M2M tenant must submit a notice to the LL. Prior to 2019 and in NYC for M2M tenants, there was no requirement for a tenant notice ... I don't know if that has changed. For tenants with leases, the lease provision would rule.

My landlord won’t let me go month to month, but offered an opt-out clause if I renew. What’s the catch?


Our lease ends this month and we asked our landlord if we could go month to month because one roommate is unemployed as a result of Covid. The management company said no. Instead, they offered to renew our lease for one year with a clause that says we can move out early, without penalty, if we give 30-days notice. Isn't this pretty much the same as going month to month? Are there any downsides to this?


Leases with opt-out clauses are more popular these days in New York City because of hardships and insecurity related to the Covid-19 pandemic. As a renter, it’s actually better for you and your roommates to sign a one-year lease with an opt-out clause, rather than go month to month, says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations (and a Brick Underground sponsor).

That’s because you'll have the legal protections of a lease, and it locks in your rent for the full year if you do stay, Himmelstein says. “And you still get to move out early if needed,” he notes.

However, if the city starts to return to normal before you move out, and you are month to month, your landlord might decide to increase your rent, which isn’t ideal if you’re already dealing with Covid-related hardships.

There are several variations of opt-out clauses, and depending on the terms in your lease, and the situation for you and your roommate, some might be more beneficial than others—so read the wording of the clause carefully.

Some opt-out clauses require you to live in the apartment for at least 90 days before you can move out. Others allow you to move out anytime during the lease, as long as you give advance notice, which is typically 30 to 60 days, Himmelstein says.

However, some opt-out clauses say you cannot move out during a “blackout period,” usually from November to January 1st. Those months are the hardest to rent apartments. So, if your roommate doesn’t find a job by then, or you or another roommate are laid off during those months, you are legally obligated to stay until the end of the blackout period.

Unless any of the provisions in your opt-out clause violate public law, it’s not illegal for your landlord to include those specific terms.

You should also understand your obligations as a tenant if you do sign a lease with an opt-out clause, says Steven Kirkpatrick, a partner at the law firm Romer Debbas. For example, some landlords will require you to inform them of your early move out by certified mail, or even return receipt. So, simply sending an email to your landlord might not be an option.

From a landlord’s perspective, the benefit of having you sign a one-year lease with an opt-out clause, rather than letting you go month to month, is two-fold, Kirkpatrick says.

If you have a lease, you're required to give advance notice before you move out, which gives your landlord time to list the apartment and find a replacement. If you’re month to month, you can basically move out whenever you want, potentially leaving your landlord with a vacant apartment unexpectedly.

In addition, New York City laws require landlords to give month-to-month tenants 30- to 90-day notice if they want you to vacate, depending on how long you’ve lived there. And, they have to serve the notice through a process server, which can be costly, Kirkpatrick says. If you have a lease, they can simply choose not to renew it.

Himmelstein says it also gives your landlord a sense of security because a lease outlines what you can and cannot do in an apartment, like not having a pet or smoking in the apartment. If you’re month to month, there’s no legal obligation for you to follow those rules and regulations.

The last thing you and your roommates should consider before signing the lease is if any concessions are being offered. Obviously, if any rent credit or months free are given to you at the end of your lease-term, and you move out before, then you’re giving up those concessions.

But, if you got your first month free, and you move out before the lease is up, you might have to pay at least some of it back, Kirkpatrick says. Most landlords include a clawback provision that says you are responsible for paying it back if you don’t stay for the full-term of the lease.

You can try to negotiate this to only pay back the prorated amount though. “If you move out in month 10, then it wouldn’t make sense for you to pay all of the first month back,” Kirkpatrick says.

So, this lease gives you and your roommates, and your landlord, both security and flexibility.

Read the fine print and consider all of your options, but if staying in your current apartment works for everyone, signing the lease with the opt-out clause mostly works in your favor.
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