TenantNet Forum

Where tenants can seek help and help others



30 day notice & holdover questions

Rights for non-regulated tenants

Moderator: TenantNet

30 day notice & holdover questions

Postby adviceneeded » Tue Jun 24, 2014 8:42 am

Hi,

We live in a private home (LL does not live here) on a month-to-month and received a 30 day notice for end of June sometime the end of the first week of June.

From the tenant/ll guidelines published online I understood that:
- Notices must be 30 day before the 1st of the new rent cycle, thus for end of June the latest would be by End of May.
- They need to be served, if they can;t 2 copies must be mailed: one regular and one certified mail.

Thus neither has been done June 30 is not effective thus no grounds for a holdover case or it will be dismissed.

Did I miss anything or am I interpreting it all correctly?
adviceneeded
 
Posts: 9
Joined: Mon Jun 23, 2014 10:52 am

Re: 30 day notice & holdover questions

Postby TenantNet » Tue Jun 24, 2014 8:59 am

In NYC, without a lease, you would be a month-to-month tenant. Landlords are required to give tenants a 30 day notice before commencing a court action seeking the tenant's eviction.

You aren't clear, but in our opinion, if the notice was properly served on you in say mid-June, then it would be effective on August 31, the first rent payment date 30 days after service.

Service should be in the same manner of service when commencing a court case, i.e., either a) served in person, or b) conspicuous place service where it is taped to your door plus sent regular and certified mail.

From what you say, it appears the service is not timely, and would be effective on Aug. 1, if at all.

Of course the LL can start a case, but it might get dismissed if you bring a motion. All that could take a few months. If all you're doing is looking to buy some time, then that's a strategy to consider. But you can also negotiate with the landlord for more time and avoid court.
The Tenant Network(tm) for Residential Tenants
Information from TenantNet is from experienced non-attorney tenant
activists and is not considered legal advice.

Subscribe to our Twitter Feed @TenantNet
TenantNet
 
Posts: 9248
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City

Re: 30 day notice & holdover questions

Postby adviceneeded » Tue Jun 24, 2014 9:28 am

Hi

Thanks for the reply! We do have an agreement that states 30 day notice from either side , which was done after the original lease expired.

Yes the notice was
- Only sent by regular mail and arrived sometime June 7 or so.

So it was neither served in a proper way as required nor within the times required.
The LL is selling this place, so yes all I am looking is to buy some time to find something new. No real way to talk to the LL very unreasonable in these aspects.
We won't mention anything in regards to the notice, this way a proper notice cannot be served in person on July 1, therefore giving us enough time until end of august.

So my understanding that this would give us to at probably to end of August seems to be correct then.

Can the court record be deleted in case the LL brings a case but there original 30 day notice is defective ?

Thank you so much really appreciated!
adviceneeded
 
Posts: 9
Joined: Mon Jun 23, 2014 10:52 am

Re: 30 day notice & holdover questions

Postby TenantNet » Tue Jun 24, 2014 9:36 am

The requirement for 30 days is in the RPL. See http://tenant.net/Other_Laws/RPL/rpl07.html and http://tenant.net/phpBB3/viewtopic.php?f=15&t=5024

Sec. 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.


The service requirements are in the law. I doubt an agreement would trump the law. It is our opinion that it takes effect on the first rent payment date after the 30 days expire.

Of course the LL can file a case if he/she wishes.
The Tenant Network(tm) for Residential Tenants
Information from TenantNet is from experienced non-attorney tenant
activists and is not considered legal advice.

Subscribe to our Twitter Feed @TenantNet
TenantNet
 
Posts: 9248
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City

Re: 30 day notice & holdover questions

Postby adviceneeded » Tue Jun 24, 2014 9:49 am

So in this case since it has not even been served at all, is it effective at all or would it need a new properly served notice and the correct time?

If that is not the case how would you calculate the next 1st after the 30 days expire? Would that just automatically mean August 1, even with the non serving and improper time? Seems if thats the case anybody can send wrong notices and then just gets lucky it will still be effective be it on a later date.

For a lawyer representation for the actual holdover case, do you have any insight in the average cost for this? I heard $3-400 is the usual average and not bad. By the way the winning party can claim the legal expenses based on the old form lease we had.

Again thanks for your help, appreciate it.
adviceneeded
 
Posts: 9
Joined: Mon Jun 23, 2014 10:52 am

Re: 30 day notice & holdover questions

Postby TenantNet » Tue Jun 24, 2014 10:14 am

Again, the LL will think it's proper service and you file a motion to dismiss (for bad service) if the LL brings a proceeding. The court might require a Traverse hearing.

Also, the LL might not agree that it's the first rent payment date after the 30 days. But if the LL accepts rent, then that might undermine his position.

With a lease, acceptance of rent would vitiate the proceeding and reinstate the tenancy. But with a M2M I don't know if that's the case. Even so, I don't think they can go against you while the time in which you have paid rent has not expired.
The Tenant Network(tm) for Residential Tenants
Information from TenantNet is from experienced non-attorney tenant
activists and is not considered legal advice.

Subscribe to our Twitter Feed @TenantNet
TenantNet
 
Posts: 9248
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City

Re: 30 day notice & holdover questions

Postby adviceneeded » Tue Jun 24, 2014 10:32 am

So if we get a traverse hearing and based on non serving just regular mail we can get this all dismisses usually?
Would the landlord then have to serve a proper notice that would start the clock from 0 basically? Lets say the court date is beginning of August (1 month seems fast enough I assume) so a new notice would then only be effective by end of September (if not served in person on august 1).

If I am correct with this, it does not seem there is much to fear as a dimissed case should be able to be removed from the records I assume ,especially if the traverse hearing determines that we were not properly served.

Thanks for these fast replies and you seem to actually know rather than just guess like other sources. Lawyers wanted to sell me mostly so far with fear etc. so I was hoping to get some decent replies based on experience etc. Appreciate it.
adviceneeded
 
Posts: 9
Joined: Mon Jun 23, 2014 10:52 am

Re: 30 day notice & holdover questions

Postby innocent1997 » Wed Jun 25, 2014 2:11 pm

Regarding the traverse - don't expect that you will prevail although you have the facts on your side. Let's say if the landlord can prove some inconsistency in your testimony, then the judge can side with the landlord.
innocent1997
 
Posts: 57
Joined: Mon Oct 07, 2013 4:58 pm

Re: 30 day notice & holdover questions

Postby adviceneeded » Wed Jun 25, 2014 2:49 pm

Well I know nothing is guaranteed, but I find it hard to prove things that do not exist.

- No proof of serving the notice is possible as it simply has not been served.
- The 30 days are off and since the landlord has no proof of serving he cannot make up this fact either.

Am I missing something here? I understand that things are never 100% guaranteed but facts are just that. The landlord needs to prove they served and cannot just say yes I did when there is no proof of certified mailing or anything else. Worst case by then I will hire a lawyer. At this point it does not seem they would really be able to do anything else besides just reiterate the rules and regulations .All I need is some extra time and I assume as long as a proper notice is not served in person July 1, the effective date can only be August 30 or later.
adviceneeded
 
Posts: 9
Joined: Mon Jun 23, 2014 10:52 am

Re: 30 day notice & holdover questions

Postby TenantNet » Wed Jun 25, 2014 3:47 pm

An affidavit of service is usually attached to the copy of the petition that is filed in court. You would do well to get a copy of the Affidavit of Service prior to the court date. If it's your word against the server, the court might side with the server. So best to focus on statements the LL makes that cannot be true.
The Tenant Network(tm) for Residential Tenants
Information from TenantNet is from experienced non-attorney tenant
activists and is not considered legal advice.

Subscribe to our Twitter Feed @TenantNet
TenantNet
 
Posts: 9248
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City

Re: 30 day notice & holdover questions

Postby adviceneeded » Thu Jun 26, 2014 12:09 am

Well since there was n serving whatsoever there cannot be any affidavit of service.
I feel based on the facts there is really nothing much the LL can do, which can be proven with any sort of facts. That was my main hope in getting at least another 2 months.
adviceneeded
 
Posts: 9
Joined: Mon Jun 23, 2014 10:52 am

Re: 30 day notice & holdover questions

Postby innocent1997 » Thu Jun 26, 2014 9:40 am

If you want till August 31 to move, it's very easy to achieve if the landlord starts with the holdover lawsuit against you in housing court.

The question is whether you can remove it from court record once landlord starts the lawsuit. My understanding is your record will be in housing court record permanently once the landlord starts the lawsuit. Some landlords do that intentionally to the tenants by placing a blackmark on the tenant's court record.

If you want till Aug 31 and not through court, then one option is to hire a tenant/landlord lawyer to neogitate on your behalf prior to landlord filing the lawsuit. Of course, you can negotiate yourself also if you feel comfortable.

If you want to get a true feel, you can go to housing courts and sit in different court rooms and get a feel yourself.
innocent1997
 
Posts: 57
Joined: Mon Oct 07, 2013 4:58 pm

Re: 30 day notice & holdover questions

Postby adviceneeded » Thu Jun 26, 2014 10:24 am

Thanks for your answer.

Well I am hoping to not get a proper notice the very least until July 2, and ideally no earlier than August 1. We will need until end of August in reality and by having another month I am sure there would be room for negotiation which includes removing the record from the system.
I am not sure whether it is best to hire a lawyer already, as of right now I can't think of anything they could do different. I do not assume it makes sense to mention anything earlier to enable a proper notice so waiting seems to be the option.

So even once a case is dismissed there is no way to get it removed? The LL can just do that as a form of retaliation or without any valid reason. If this is the case can you sue the LL for damages if the case is dismissed as it is not the tenants fault if the LL does not know the law properly.
adviceneeded
 
Posts: 9
Joined: Mon Jun 23, 2014 10:52 am

Re: 30 day notice & holdover questions

Postby innocent1997 » Thu Jun 26, 2014 11:19 am

The record becomes permanent record as it's entered into the court computer system for life.

Sometimes, people don't see the values of lawyers until being brought to court by landlord. However, once in court, the record is already in the system.
innocent1997
 
Posts: 57
Joined: Mon Oct 07, 2013 4:58 pm

Re: 30 day notice & holdover questions

Postby adviceneeded » Thu Jun 26, 2014 11:36 am

I understand. I am currently debating whether to contract a lawyer or not. The problematic part is I do not think there is anything he can do for now, as the notice is defective and should not be brought to the LL attention in order to prevent a proper notice befor ideally even August.
As long as there is enough time left I would think that an agreement can be made which excludes the erasure of the record with LL consent in exchange for moving out earlier than legally required.
My whole case is as long as I am legally not terminated based on defective notice the case should be dismissed and thus a lot of leverage to actually negotiate.

Wrong assumption? Did you use a tenant lawyer before and can you PM me the info? I just want to compare a few as mostly the strategy is to state that without them you will have no chance and bad consequences rather than more factual (which of course would not result in $)

thanks!
adviceneeded
 
Posts: 9
Joined: Mon Jun 23, 2014 10:52 am

Next

Return to NYC Non-Regulated Apartments

Who is online

Users browsing this forum: No registered users and 1 guest