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Vacating M-2-M Lease on Aug. 31 - Landlord wants more rent.

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Vacating M-2-M Lease on Aug. 31 - Landlord wants more rent.

Postby jrm18 » Wed Aug 21, 2019 2:46 pm

Good afternoon,

My wife and I have been month-to-month since our lease expired on Nov. 30, 2018. Based on everything I've read here and elsewhere, we are not required to provide any notice and can vacate by August 31 without having to pay any additional rent. Our landlord has told us that notice must be provided on the first of the month or an additional month's rent is necessary.

Our expired leases - again, expired in November 2018 - does not contain any information regarding notice, save for the following line in the description of the unit:

"2nd Floor, 1 bedroom apartment with all appurtenances, for a term of one year, with a (3) thirty-day written notice, ending on November 30, 2018 at 12 o'clock p.m."

Would this line in an expired lease govern the way in which we vacate our month-to-month lease now? To me, it seems like it simply reiterates the New York State Real Property Law 232-a.
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Re: Vacating M-2-M Lease on Aug. 31 - Landlord wants more re

Postby TenantNet » Wed Aug 21, 2019 3:12 pm

First, you can move any time you wish; the question is can the LL come after you for additional rent or can they withhold your deposit.

Many LLs refuse to return deposits knowing tenants will not fight over that. That is why many tenants withhold the last month's rent (the tenant might still be liable for legitimate damages).

See this thread
http://tenant.net/phpBB3/viewtopic.php?f=15&t=5024

that talks about M2M tenancies and what notices are required. In NYC tenant are not required to give notice.

However, I would look at the lease. Some might argue that a M2M tenancy is essentially a 30 extension of the prior - now expired - lease, and that all terms continue to the monthly lease extensions. I cannot say if what you quoted as to notice trumps (sic) the RPL.

Also consider the changes in the new rent laws (some changes also apply to unregulated units)

27 § 6. Section 232-a of the real property law, as amended by chapter 312
28 of the laws of 1962, is amended to read as follows:
29 § 232-a. Notice to terminate monthly tenancy or tenancy from month to
30 month in the city of New York. No monthly tenant, or tenant from month
31 to month, shall hereafter be removed from any lands or buildings in the
32 city of New York on the grounds of holding over [his] the tenant's term
33 unless [at least thirty days before the expiration of the term] pursuant
34 to the notice period required by subdivision two of section two hundred
35 twenty-six-c of this article, the landlord or [his] the landlord's agent
36 serve upon the tenant, in the same manner in which a notice of petition
37 in summary proceedings is now allowed to be served by law, a notice in
38 writing to the effect that the landlord elects to terminate the tenancy
39 and that unless the tenant removes from such premises on the day [on
40 which his term expires] designated in the notice, the landlord will
41 commence summary proceedings under the statute to remove such tenant
42 therefrom.
43 § 7. Section 232-b of the real property law, as added by chapter 813
44 of the laws of 1942, is amended to read as follows:
45 § 232-b. Notification to terminate monthly tenancy or tenancy from
46 month to month outside the city of New York. A monthly tenancy or tenan-
47 cy from month to month of any lands or buildings located outside of the
48 city of New York may be terminated by the [landlord or the] tenant upon
49 [his] the tenant's notifying the [other] landlord at least one month
50 before the expiration of the term of [his] the tenant's election to
51 terminate; provided, however, that no notification shall be necessary to
52 terminate a tenancy for a definite term.
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Re: Vacating M-2-M Lease on Aug. 31 - Landlord wants more re

Postby jrm18 » Wed Aug 21, 2019 3:21 pm

The response is much appreciated.

Like you, I question whether the brief mention of a vague thirty day notice overrides the RPL. Unfortunately, it is so vague I don't even know who it refers to: thirty day notice from landlord or tenant?

Thanks again!
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Re: Vacating M-2-M Lease on Aug. 31 - Landlord wants more re

Postby BubbaJoe123 » Wed Aug 21, 2019 4:41 pm

The RPL is clear that no notice is required. Let's put aside the issue of whether a provision of the lease CAN override that for the moment. Even if we assume that it CAN, then, for the landlord to rely on that provision (which THEY wrote), then it would need to be clearly written, and this provision certainly isn't.

If this goes to court, I'd bet heavily that you'd prevail. Don't pay anything extra, send the LL a certified letter, return receipt requested, clarifying that you will be leaving on or before the 31st (and reference your previous conversations), and ask exactly how they want you to return possession to them, and provide information on how you want your security deposit returned to you. That shows that you're acting in good faith and fully intend to depart on time, making it harder for them to claim that you held over or something along those lines. Make sure you take lots of pictures of the apartment to show you returned it in satisfactory condition.

The new rent laws require LLs to return deposits within 14 days, and there are penalties up to 2x if they fail to return them on time. That said, if the LL wants to keep the deposit and claim that you needed to provide 30 days notice, they can do so, and you'd have to sue them to get it back. Hopefully it won't come to that, but if it did, I like your odds, as I noted earlier.
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Re: Vacating M-2-M Lease on Aug. 31 - Landlord wants more re

Postby jrm18 » Thu Aug 22, 2019 1:15 pm

Your reply was particularly timely! The LL just texted me stating that "I hope you are aware that you will not be receiving your deposit back. Due to the fact that you did not give me full 30 days notice on vacating the premises."

Here come the headaches!
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Re: Vacating M-2-M Lease on Aug. 31 - Landlord wants more re

Postby TenantNet » Thu Aug 22, 2019 1:31 pm

Did you pay Aug rent? That's one way to get the deposit back (although we aren't taking a legal position on that, I know many tenants do it). Understand that a lot of things are done without regard to any actual "law." Otherwise you could end up in endless litigation. (and if you want to do it "proper," the remedies are by using Small Claims Court, or the Attorney General's office.)

The deposit is for actual damages, not for lack of a notice. He has just given you a reason for his withholding the deposit, and in our view, it's not legit.
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Re: Vacating M-2-M Lease on Aug. 31 - Landlord wants more re

Postby jrm18 » Thu Aug 22, 2019 2:02 pm

Yes, we're paid fully through the 31st. I think we may end up in Small Claims, though I wasn't aware of a potential remedy through the AG's office.

That was my understanding, too. Seems like his spelling out that the deposit will be used for a purpose other than damages is questionable at best.
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