TenantNet Forum

Where tenants can seek help and help others



Definition of "Extended Absence" and "Occupant"

Rights for non-regulated tenants

Moderator: TenantNet

Definition of "Extended Absence" and "Occupant"

Postby mmartinez » Sun Jul 02, 2017 11:56 am

Good afternoon,

My brother and I recently moved to a new apartment in April. Every summer, we take 2 one-week vacations back home for a family reunion at the beginning and end of the summer. I've been in Brooklyn 5 years at the same place before this move, and after my first year of back and forths, my previous landlord informed me that 7 days was not an "extended absence" by New York law and that I did not need to notify him every time.

Because this is a new place we're staying at, my brother and I asked a longtime friend (15+ year friendship) to stay over and water our plants and accept our mail packages, etc for the six days while both my brother and I were out. Per our understanding, she classified as an Occupant under Real Property Law 235-f which we agreed to abide by in our rental agreement. We did not charge her for this service, so she was not subletting.

Upon finding her taking out the trash, my landlord called to say that we were in breach of 1) the lease articles stating that we needed to inform her of an extended absence and 2) the occupancy clause (as mentioned RPP 235-f). She wants us out in 60 days.

We just got back in town and will be meeting with her in person this Friday. We are putting together our case. Is there anything we are missing?
mmartinez
 
Posts: 6
Joined: Sun Jul 02, 2017 11:20 am

Re: Definition of "Extended Absence" and "Occupant"

Postby TenantNet » Sun Jul 02, 2017 12:42 pm

I would agree 7 days is not any sort of extended absence. As far as I know, it's not defined in any law. Even if it were, also as far as I know, there's no legal reason for you to notify the LL of your being gone for a short (or even a longer) period).

While the law doesn't require it, in some situations it might be wise to let the LL know, but that depends on your relationship with the LL. You could be gone ALL summer and you don't have to let him know.

But it makes sense if you want to preclude some claim that you abandoned the place, or the LL needs to enter in case of emergency and so on.

In your new place, having a friend stay there while you are gone is perfectly acceptable. She would be house-sitting as long as no money exchanges hands. Don't get caught up as to the technical definition of "occupant." She's a temporary guest. Any judge would understand the nature of a house-sitter: water plants, get the mail, feed the cat, and so on.

If the LL even gave you a Notice to Cure, it would be over (and you would have cured) long before anything else happened.

If the LL is giving you written notices on this, just write a return letter (make copies and send certified) explaining that it's just a house sitter that does not establish any sort of occupancy by others. And even if it did, you have a right to have a roommate.

If the LL only gave you an oral notice, I'd ignore it. Some LLs just get nosy and their anger will die down. Try hard to not let this escalate. Kissing the LL's ass might help just so they think they are in charge. But if things get testy, I'd stand on my rights.
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: 8462
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City

Re: Definition of "Extended Absence" and "Occupant"

Postby mmartinez » Sun Jul 02, 2017 3:24 pm

Thanks for your quick response!

We have received no written notice to cure, just the phone call. And as you mentioned, it has already been cured (well within 10 days) when we returned and she left. We wrote LL an email explaining the nature of the situation along with the agreement to meet on Friday. We apologized for any inconvenience and promised to speak with her to reach a resolution that's best for everyone moving forward. Hopefully that will be enough.

She did mention something else over the phone that I haven't been able to find any statutes on: the keys. We were given three sets of keys for my brother, myself, and our father who is our guarantor. (He is on the lease as a tenant per LL's request though he doesn't live with us.) We lent our house sitter one set of keys for the duration of the week. Our complex is three floors, one apartment per floor, each with a locking front door. LL lives on the first floor and said she felt unsafe that we had given someone keys. Nothing in our lease explicitly mentions or dictates what we can and can't do with those keys, but is there anything to that?
mmartinez
 
Posts: 6
Joined: Sun Jul 02, 2017 11:20 am

Re: Definition of "Extended Absence" and "Occupant"

Postby TenantNet » Sun Jul 02, 2017 4:13 pm

If it were me, I would not meet with the LL, not to be adversarial, but that a) you didn't do anything wrong, b) the condition no longer exists, and c) any meeting might result with your agreeing to give up some of you rights (that last part is probably unenforceable anyway, but you don't want to go there). I would just say it's not a problem and leave it there. After all, what does "reach a resolution" really mean? Seriously you have a right to have a house sitter and IMHO, the LL is misinterpreting the law and going overboard.

Of course anything depends on your relationship with the LL, but I still would not meet over this.

On keys, there's really nothing to that. Just explain it was temporary (and you had a right to do that), and there aren't any stray sets of keys floating all around NYC.

BTW, as far as I know, there's no law that says you can't lend out your keys. There might be something in the lease, but the LL would have to bring a breach of lease suit. You're not even close to that.

I would - just for you own use - make a spare set. Even the keys that say "do not duplicate" you can cover that with a piece of plastic, something like this: https://goo.gl/XU3Jt6 - and you'll find some locksmiths being OK with making duplicates. The "do not duplicate" is not a law.

I keep a spare set just for emergencies, or one to give the neighbor in case I get locked out.

But balance that with the LL's legitimate concerns about building safety.
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: 8462
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City

Re: Definition of "Extended Absence" and "Occupant"

Postby mmartinez » Mon Jul 03, 2017 10:53 am

Thank you again for the advice. We already agreed to meet in writing so I'd rather not back out of that on such short notice, but I will be back with the results of the talk if any more concerns are brought up. The help is sincerely appreciated.
mmartinez
 
Posts: 6
Joined: Sun Jul 02, 2017 11:20 am

Re: Definition of "Extended Absence" and "Occupant"

Postby mmartinez » Mon Jul 31, 2017 12:57 pm

So we met with the landlord on July 7, made our case, and said we would be open to discuss any accommodations moving forward to make sure everyone was happy when we needed house-sitting. LL said she would get back to us.

Three weeks later, we get a letter in the mail. LL claims that we "jeopardized the health and safety of everyone in the building", she is terminating our lease, and we have two months to find new housing. She restated all her points from the original phone conversation: the keys were only meant for us, our house-sitter was not "immediate family", and added in an incident early in our tenancy where she claims we brought in bedbugs--an issue that we resolved within days. We even personally paid for the fumigation ourselves in good faith.

My brother and I are stuck. We are heading out of town for another week this Saturday and don't know how to handle that with LL. In two months time, when she wants us out, we will be travelling again and cannot move at her requested date. Her strongly worded letter indicates she is past the point of negotiating and that "this will be best for everyone."

The question now is whether housing court will be worth the time/money/energy if we'll need to move at the end of our year (April 2018) when she inevitably doesn't renew our lease. What are our options?
mmartinez
 
Posts: 6
Joined: Sun Jul 02, 2017 11:20 am

Re: Definition of "Extended Absence" and "Occupant"

Postby TenantNet » Mon Jul 31, 2017 1:14 pm

See I told you not to meet with the LL. But since you did, did you record the conversation? Did you memorialize all that was spoken on paper?

Look at the fine print of your lease carefully as to termination issues as to time limits, dates and how notices are sent to you. While the law covers the minimum, some leases might give tenants more leeway. How was the letter sent to you? Personal delivery or mail?

As you're not rent stab, you have to look at the law, case law and the lease.

You should investigate whether the unit should be subject to rent stab. Have you gotten a rent history from DHCR? That's the start. If that issue is being litigated at DHCR, that might put any eviction on hold.

Ignore the bed bug issue ... for all you know someone else brought them in. No one can prove it, and chances are the LL's delay in bringing this up could establish they've waived their rights to do so. Besides, as you state, the condition no longer exists.

You don't say what kind of building this is ... new luxury doorman building? Or a walk-up tenement? Does the owner live on-site?

You might consider consulting with a tenant attorney. We have a number advertising on this site. Start with a consultation. (while we do derive advertising revenue from these attorneys, we do not get any 'kickbacks' when tenants hire them).

Can you send us the termination letter for review? If you are willing, scan as a PDF file and attach to a private message (do not post it here in the forum's public area). Use the "PM" button just below your username.
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: 8462
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City

Re: Definition of "Extended Absence" and "Occupant"

Postby mmartinez » Mon Jul 31, 2017 1:58 pm

We recorded the conversation ourselves. The only time limit mentioned in the lease is that 30 days written notice has to be given from the day of any additionally occupancy at the premise (which we more than complied with). The letter was sent through the mail.

We have not done any research into rent stabilizing. I'll take a look into the DHCR.

Our building is a co-op. LL and her partner (who is the property manager) live on the first floor, second floor is another tenant in a studio, third floor is my brother and myself.

We've been reaching out to a couple of consultation services and will add this one to the list. Expect a PM shortly.
mmartinez
 
Posts: 6
Joined: Sun Jul 02, 2017 11:20 am

Re: Definition of "Extended Absence" and "Occupant"

Postby TenantNet » Mon Jul 31, 2017 2:12 pm

Call DHCR ASAP and ask for a rent history. You can do it by email. See http://www.nyshcr.org/Rent/tenantresources.htm

Terminations prior to lease expiration have to cite a) nuisance or b) lease violation. Does it do either? As the condition was cured (assuming it was a real violation), neither exists. In my view, the termination is bogus and can be dismissed if brought to Housing Court with a holdover.

See https://goo.gl/vi9ivK and https://goo.gl/uWniKX for more information.

Usually service must be personal (handed to you), or by substituted service, i.e., taped to door AND sent by both regular and certified mail, and done so by a person who is not a party (i.e., a process server).

They might have also been required to send a Notice to Cure prior to the Termination letter.

If it's a coop, chances are the owner is a single individual who doesn't know LL/T law. Use that to your advantage.

When you say consultation services, do you mean tenant attorneys? I would be cautious if they are not, and not just any lawyer ... talk to one who has plenty of experience in housing 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: 8462
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City

Re: Definition of "Extended Absence" and "Occupant"

Postby TenantNet » Mon Jul 31, 2017 2:28 pm

My mistake. If a coop, only tenants who were in occupancy when conversion occurred maintain RS status. In addition, to be RS, there must be 6 or more units in the building (or there were 6+ units even if the LL combined units).

Now is the time to NOT speak with the LL. Ignore them, say nothing. If they want to know when you're moving out, just nod and say something inconsequential such as you're looking into it. Do not tell them anything. Do not commit to anything. Do not give them any new information.
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: 8462
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City

Re: Definition of "Extended Absence" and "Occupant"

Postby mmartinez » Mon Jul 31, 2017 5:07 pm

I have messaged the DHCR. The letter cites a lease violation but no notice to cure was ever sent. It was only sent to us through the mail. And yes, we are consulting with tenant attorneys.
mmartinez
 
Posts: 6
Joined: Sun Jul 02, 2017 11:20 am

Re: Definition of "Extended Absence" and "Occupant"

Postby TenantNet » Mon Jul 31, 2017 5:30 pm

As I said in my follow-up. If you're in a coop, and were not there when the coop converted from a rental building, then you won't be Rent Stab.
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: 8462
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City


Return to NYC Non-Regulated Apartments

Who is online

Users browsing this forum: FAST Enterprise [Crawler], Google Adsense [Bot] and 2 guests