Lease hold-over renewal increase question

[lvicks]

Hi All,

I'm in a non-regulated (market) apartment. My original lease expired over a year ago and I've just been paying month to month. I have concerns about a section of my lease covering "Hold-Over Renewal". Full details below.

My lease expired over a year ago. I am on good terms with my landlord and attempted to negotiate a rent increase, but we were pretty far apart (I wanted 5% they wanted 20%, etc). I tried to continue negotiations but haven't heard back. My landlord has various buildings/properties and can be quite busy. I have been paying my original rent every month, the checks have been deposited, and I have received no notifications from my landlord in any form, call/text/email/letter.

My concern is around this clause in my original lease:

The failure of the TENANT to notify LANDLORD in writing (in
manner herein provided of intention to vacate and terminate
this LEASE) prior to two months of the termination date or
extended expiration date hereof, then in that event if
TENANT retains possession of any part of the PREMISES
after the Term, TENANT shall become a month-to-month
tenant for the entire PREMISES upon all of the terms of this
Lease as might be applicable to such month-to-month
tenancy, except the now provided MONTHLY RENT thereof
shall be increased by the dollar amount stated above as
“HOLD-OVER RENEWAL MONTHLY RENT INCREASE” for
each full or partial month Tenant remains in possession, as
liquidated damages for TENANT’s holdover.
If TENANT notifies LANDLORD of intention to vacate and/or
surrender LEASED PREMISES, or not to renew LEASE, and
TENANT fails to vacate or surrender possession at said
effective date set out therein, LANDLORD may at its option
treat such as a renewal of this LEASE for like period (as if no
notice given) and TENANT shall pay expense or damages
suffered by LANDLORD by virtue of said notice, relying upon,
or based upon said notice, and TENANT agrees to defend
and hold LANDLORD harmless therefore. Rent shall be
doubled for each day TENANT holds over after effective date
of notice to terminate.
Notwithstanding anything to the contrary appearing above,
LANDLORD may by letter to TENANT notify him that the
LEASE will not be renewed, by at least two months’ notice
prior to any expiration date.

The "HOLD-OVER RENEWAL MONTHLY RENT INCREASE" is stated as $150.

My fear is that I'll continue month to month and one day the landlord will surprise me with a bill for all of the back months based on the monthly rent increase.

My hope is that the landlord is required to notify me of these increases, which they have not.

My general assumption is that the landlord is just busy with higher priority issues and doesn't want to deal with me, but I don't want to leave myself exposed based on an assumption.

Does anyone have insight into this or can anyone recommend an appropriate person/group/lawyer to speak to about this?

Thanks!

[TenantNet]

With an expired lease, and if the LL is accepting the rent, you are a month-to-month tenant; it's considered an extension to the prior lease on the same terms and conditions. The LL could change that, but there would have to be proper notice. As one tenant attorney stated, " Once the initial lease expires, the landlord can ask for any rent he/she desires, and if the parties cannot come to an agreement, the tenancy ends, subject to certain notice requirements imposed by HSTPA."

A Holdover is a type of court proceeding where the lease has expired (or terminated) and the tenant continues to occupy the premises. The LL can file a Holdover proceeding seeking the tenant's eviction.

As you say, it sounds as if the LL is just busy and hasn't gotten back to you with a counter-offer. But you also say the LL is accepting the rent. I have never heard of a "Holdover Renewal" or if such a thing can be enforced. When your lease ends, it ends. You don't have to give notice if the lease expires.

OTOH, if a lease is terminated prior to its natural expiration, certain notice requirements may be necessary (that's more for the LL than for the tenant). See the first Lebovitz article linked from the forum's home page. Plus, if you just get up and move some day, the LL is required to mitigate his economic loss (or prove he tried). Again, see Lebovitz. Seems to me that "liquidated damages" might not be permissible given the 2019 provision requiring the LL to mitigate damages. And to be honest, I don't know if a rent increase can be imposed as "liquidated damages."

There are many instances where LL's toss a bunch of jargon in leases that are just not enforceable, and it's meant to intimidate tenants. I can't say if this is one or not, but I would check with an attorney. And if you really want to dig into it, Google: "liquidated damages" HSTPA New York

What I would also suggest is to earmark all rent payments in the memo line of the check. Just write "rent for September 2023." You could add "rent in full" but that might trigger a reaction from the LL.