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De facto month-to-month in RS apartment

NYC Rent Regulation: Rent Control/Rent Stabilized, DHCR Practice/Procedures

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De facto month-to-month in RS apartment

Postby CatchaFire » Tue Mar 02, 2021 3:47 pm

My lease expires soon. I would sign a new one, but I may have to leave the city over the summer, and I won't know until early in the new lease term. I talked to my LL about attaching an opt-out rider to the lease, but he just told me (orally) that I could go month-to-month until I know whether I'll be staying for the full year, then return the lease.

I'm aware that this arrangement isn't legal in an RS unit and that the LL could sue me for failure to renew. Is there any danger that, in paying rent in the new lease term without returning the lease, I could imply the renewal agreement into existence? I seem to recall reading something about that on this site, but I can't find it.

For context, the LL has had trouble renting vacant units, and he's put up signs around the building encouraging tenants to apply for rent relief money from the state, so it's possible he's made this arrangement with other tenants who aren't sure they'll be able to make rent from month to month (almost all apts in my building are RS). On the other hand, it gives him further incentive to try to shake me down if I leave early.

I was thinking of sending him a certified letter confirming the month-to-month arrangement, so there's at least a paper trail.

Thanks for any help you can give me.
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Re: De facto month-to-month in RS apartment

Postby TenantNet » Tue Mar 02, 2021 5:24 pm

If you have to leave prior to lease expiration, there are options:
1. sublet
2. assignment
3. get LL to agree to release you from lease rent obligations (in writing)
4. just leave (with notification to LL).

What is best in your situation really depends on a host of factors, and made more complicated by COVID.

If you have to leave, is it permanent, or would you plan on returning?

Has the LL offered you a RS lease renewal on DHCR form RTP-8? If he hasn't, then I would not mention it to him. You would still have your RS protections and any new renewal lease would not start until they offer you one - and after the 90-150 day period is over. So staying quiet would likely be in your interest, especially if it's a large LL, he might not remember if he hasn't sent you the form. I'm guessing right now you just want some time until your situation gets clarified.

Whether or not an opt-out rider (#4) would stand to legal scrutiny if the LL changes his mind, that's a question for an attorney.

Going M2M might work. It seem the LL is being cooperative, but only you know if he can be trusted, and how litigious he is. These days LLs want tenants who can pay rent, so you might have an edge, for awhile.

It's not so much about "failure to renew." After a lease has ended, then yes, you can go M2M, but you're still RS. If he hasn't made the offer, he can't claim failure to renew. If he has, and you hold over past the end of the lease term, then he can commence a holdover proceeding. If the current lease has expired, and if you pay, and the LL accepts, your rent payment for the following month(s), then that creates a new lease, but only on a M2M basis. (that is probably what you read). If he does not accept the payment, then he may commence a holdover proceeding.

On a M2M, the LL has to give tenants proper notice. See this post: viewtopic.php?f=24&t=13981
and download Part 1 - in there is a discussion of what notices are required.

Given the backlog in the courts, that could take some time. Also ... be aware of the hardship declaration. That's mostly for non-pays, but it might have some applicability (again, ask a lawyer about that).

As for DHCR rent relief, in our view, that's a bogus remedy for COVID. Most tenants don't get it and I think the (second) deadline has passed.
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Re: De facto month-to-month in RS apartment

Postby CatchaFire » Wed Mar 03, 2021 3:37 pm

Thanks for your help. All very clearly laid out.

If I left, I wouldn't plan on returning to the apartment. The LL sent me the renewal offer as prescribed and by regular mail. I'm paying a preferential rent, if it matters, and probably slightly above current market rate. The original lease terms (pre-HSTPA) are not generous regarding lease-breaking, so I'm not eager to sign anything unless I know I'll be able to commit for the full year, especially given the LL's difficulties filling other apartments.

Yes, I just need some time to clarify my situation. I'll know within six weeks of the new lease term (and possibly much less) whether I'll be staying in the city. M2M is appealing since I wouldn't have to wait months before signing the lease (or not). If the LL accepted the first lease payment, then decided to end the tenancy, he'd have to give me 90 days' notice, which would be as much time as I'd need to stay in the apartment if I did end up leaving in the summer. But could I send the lease back within that time if I wanted to stay in the apartment, even if he moved to end the tenancy, or does it not work like that? From the sound of it, a holdover proceeding would move so slowly that I'd be able to return the lease before it had gotten anywhere, but would that be enough to preserve the tenancy?

I found the (possibly out of date) case referencing an implicit renewal (from the "Guide to Lease Renewal Disputes," written in 2002). But I'm guessing the implicit lease referenced would be M2M, technically?

"In a recent case, a tenant tried to escape eviction by claiming the landlord had no right to give notice of non-renewal of lease on the grounds of non-primary residence because the tenant had no current lease. The tenant had refused to sign the prior renewal lease offer because the landlord had used her married name on the form. But the tenant then commenced to pay the rent increase authorized by the lease she refused to sign. A state appeals court found that the tenant had a lease because of her agreement to the increase, without a fully-executed or “delivered” document. You can’t have it both ways.

If you dispute a renewal, you can’t agree to other parts not in dispute to prove your "good faith." This may "deem" the lease you dispute into existence. In fact, the rent-stabilization code changes adopted in December 2000 allow a lease to go into effect by the tenant merely ignoring the renewal offer, if the landlord lets them stay—though the landlord also has the option to commence an eviction action in court. The lesson here is to dispute improper lease-renewal offers right away and in writing. Don’t give the landlord the opportunity to define the dispute his way."
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Re: De facto month-to-month in RS apartment

Postby CatchaFire » Mon May 10, 2021 7:51 pm

UPDATE

I will be leaving the city, but I'm still unsure of the timeline; my preference is to continue M2M for now. Unfortunately, while the LL accepted the rental payments for April and May, he also sent me a boilerplate notice at the end of April threatening legal action if I didn't send in the lease renewal. The management office is very disorganized, so this could just be the bureaucratic machinery at work, but obviously I can't count on that. If I'm understanding the guidance from the journal article, the 90-day clock for terminating a M2M tenancy doesn't start until the LL serves notice, and I assume in an RS apt, that could only come at the end of a holdover proceeding? In other words, I think I should be able to play for time effectively?

Thanks for any advice or guidance you can give me.
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Re: De facto month-to-month in RS apartment

Postby TenantNet » Mon May 10, 2021 8:55 pm

This is not legal advice (we're not lawyers) and more practical advice. If the LL is disorganized, you might let it play out. In other words, don't respond just yet. Keep paying the existing rent if you can, and document it with Certificate of Mailing (proof of sending). If he accepts the rent, then you should be good for another month. If they take you to court, we believe they would have to send you a Notice to Cure, although it might get tricky as to a Notice of Termination as you are already M2M.

It might depend on the exact wording of the document you did receive, and how it was delivered to you.

On the other hand, try to get your situation in order and let the LL know as soon as you can. The courts are still backed up - but not completely closed. So playing for time can get tricky.
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Re: De facto month-to-month in RS apartment

Postby CatchaFire » Tue May 11, 2021 12:07 pm

Thanks for your help.

Yes, my instinct is to just keep paying the rent. The management company handles a lot of buildings, so I would guess that they're likely to cash any rent checks that come in, just through inertia.

The document I received was brief and delivered by regular mail, saying in essence that I needed to return the lease to keep it active.
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Re: De facto month-to-month in RS apartment

Postby TenantNet » Tue May 11, 2021 12:21 pm

My understanding is that when a LL accepts rent, that is also the acceptance of the month-to-month lease for another month.

There are complicated service requirements as for Notice to Cure, Notice of Termination and any Petition. Timing can be an issue if something was done properly or not. See the Lebovits articles on the 2019 changes to the rent laws.

Failure to sign a lease would be - in our opinion - a basis for a holdover proceeding, but can be curable.

And of course the situation in the courts is often unknown, at least to those of us that are not attorneys. There is the eviction moratorium and hardship declaration, but that mostly applies to non-payments. And some LL's are going to supreme court rather than housing court; that can speed things up a bit.

So if you want to play things out for a few months, well that's one thing. But a long-term strategy will face hurdles. Also consider that you can always just tell the LL you're ending the lease early.
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Re: De facto month-to-month in RS apartment

Postby CatchaFire » Mon May 17, 2021 7:47 pm

Thanks again for your help. No, it's not viable as a long-term strategy, but I hope to have this resolved fairly soon. I just don't want to deal with a lawsuit on the way out.
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