Articles Posted in Landlord and Tenant

We have observed that the current inventory of houses available to purchase in the area serviced by our attorneys is low.  In addition, many houses are rented.  When the tenant and landlord have a good relationship, it is not unusual for the parties to agree that the tenant will buy the house from the owner.  This post will address the legal issues involved in such a transaction whereby the tenant becomes the buyer and the landlord becomes the seller.

The first action that both parties should take is to engage the services of an experienced real estate attorney.  Such a transaction would be considered “for sale by owner” , since neither party would be using the services of a real estate agent.  As such, the attorneys will need to develop the particulars of the deal terms that will be included in the contract, such as the purchase price, downpayment amount, whether there are conditions such as a mortgage contingency, and deadlines for obtaining the mortgage commitment and closing.  One concern is that the property may not appraise to at least the amount in the contract since it was not offered on the open market through a real estate agent who is familiar with appropriate pricing for the property.  If the appraised value is lower than the purchase price, the buyer will not be able to obtain the mortgage in the anticipated amount needed to close.

A tenant occupying the property is already familiar with property condition and may not find it necessary to make repair requests.  However, it may behoove the buyer to conduct due diligence and order a professional engineer’s inspection that will evaluate systems servicing the house such as the furnace, hot water heater and roof.  These are elements that a tenant may not consider when renting a house, but a potential owner should evaluate before signing a contract.  A proposed owner may also be concerned as to whether proper permits exist for improvements made to the house, while a tenant would not have considered such issue before moving in.

marshal-300x214As the moratorium on eviction cases in New York State due to the COVID-19 pandemic fades into memory, our firm has resumed regular operations regarding landlord-tenant law.  In general, this means eviction cases when a tenant may have stayed past the expiration of his lease (known as holdover actions), and those when a tenant is in violation of his lease, usually due to failure to pay rent (non-payment actions).

The question this blog post will address is what happens at the end of an eviction action that allows a tenant to be removed from the premises.  In order to evict any tenant, the Court must issue a Judgment and a Warrant of Eviction.  This can occur in several ways.  The first is if the tenant fails to appear in Court, and the Court then issues a default judgment against the tenant.  Conversely, if the tenant does appear, the case may eventually go to trial before the Court.  If the landlord prevails at trial, again, the Court will allow entry of a Judgment against the tenant.

Finally, it is possible that the parties will agree to a settlement of the action.  Usually, that is through the execution of a Stipulation of Settlement.  In general, a Stipulation is a compromise of the case.  The tenant may agree to leave the premises at a future date certain.  For example, if the case is brought in early January, the attorneys for parties may agree that the tenant may vacate the property on or before March 31st.  There may be other aspects of the case that are addressed in a Stipulation of Settlement, such as any rent arrears due from the tenant.  The agreement may allow the tenant to pay such arrears over time, and, assuming he complies with the payment terms, the landlord may withdraw his case when full payments are made pursuant to the Stipulation.

renter-300x169Recently in the news are proposals by the Biden administration regarding policies to allegedly protect rental tenants.  According to the stories, multiple federal agencies are strongly considering taking actions that are designed to strengthen tenant protections and encourage rental affordability.  Of course, experience has shown that well-intentioned government actions often do not have the intended results, and often worsen situations that they are designed to ameliorate.

Due to the extreme reaction to the COVID-19 pandemic, there is currently a shortage of residential housing, especially in large cities.  This is likely a result of the various eviction moratoriums during the pandemic, which resulted in tenants remaining in housing without paying rent.  The effects of these moratoriums, even if they are no longer in effect, continues to the present day.  Local landlord-tenant courts are still trying clear the backlog of eviction cases that occurred during the moratorium, especially in large cities such as New York.  As a result, new renters are finding that, due to a shortage of supply, rental units have increased greatly in price, as the law of supply and demand has superseded governmental regulation.

The government is proposing executive action to direct the Federal Trade Commission to issue new regulations defining “excessive” rent increases, as well as other protections for renters, such as forcing landlords to wait at least thirty days before commencing eviction proceedings for non-payment of rent.

applebeesAs the COVID-19 pandemic fades, some legal cases that were temporarily postponed by the Courts, such as commercial evictions , are resuming and going forward in litigation.  A recent case in the news involved the popular family restaurant Applebee’s, and its location in the heart of New York City, timessquare  in Times Square.

The case involved the non-payment of rent totaling over seven million dollars by Applebee’s during the pandemic.  The company argued that it had cash flow problems worsened by the pandemic, had to completely close its Times Square location in March, 2020, and could not reopen until June, 2021.

The attorneys for the landlord argued that there were no clauses in the commercial lease allowing Applebee’s to avoid making payments owed during the pandemic.  The Court ruled that Applebee’s had to pay the full amount of the back rent, and also ordered that it be evicted from the Times Square location.

throuple-193x300Our firm often fields inquiries from clients regarding successor rights in New York residential rental apartments.  First, experienced counsel should determine whether the premises are subject to rent regulation.  Rent regulation in New York State applies to many, but not all, residential units.  It is more prevalent in New York City than in its surrounding suburbs.  However, it does also cover some rental units in Westchester and Nassau Counties.

Assuming that rent regulation does apply to the premises, then the current occupants may be allowed successor rights once the original party on the lease either passes away or vacates the premises.   For example, let’s assume Grandma rents an apartment subject to rent regulation, and only her name is on the original lease.  As Grandma ages, some of her grandchildren move in to take care of her, and eventually become permanent occupants of the premises.  Even though they are not listed as tenants on the original lease, these individuals, as family members occupying the premises, may be entitled to a successor lease once Grandma passes away or moves out of state.

A recent New York City Court case raises new possibilities regarding the legal definition of “family members” as they apply to more modern, non-traditional relationships.  The case of West 49th Street, LLC v. O’Neill involved a New York City apartment which was occupied by three unmarried individuals, only one of whom was on the rent-stabilized lease.  After the death of the named tenant, one of the other individuals claimed that he was a non-traditional family member, despite the fact that the third individual, and not him, was the “life partner” of the deceased for over twenty-five years.

Our firm often receives inquires regarding renewals of residential leases.  As prior blog posts have discussed, in general, a tenant in New York has no legal right to a renewal lease, unless the rental unit is subject to some type of rent regulation.  Another exception may be where the lease itself contains a clause that allows either party to renew the lease upon proper notice to the other party.  The notice period may be 30 or 60 days (or another time length) prior to the current lease expiration, so it is important for experienced counsel to review residential leases to ensure that, if a party wishes to renew, proper notice is timely sent to the other party under the lease terms.

A common situation arises when the landlord does not wish to renew a tenant’s lease.  Provided the rental unit is not subject to rent regulation, under current New York law, the landlord does not have to provide a reason for such non-renewal.  However, the non-renewal cannot be for discriminatory purposes against the tenant in question.  In 2019, New York law was changed regarding non-renewal of tenant’s leases.  These changes will be discussed in this post.

Under the revised law, also known as the Housing Stability & Tenant Protection Act of 2019, which became fully effective in October, 2019, landlords are now required to give notice when they decide not to renew a tenant’s lease.  The amount of time required for the notice depends on how long the tenant has occupied the premises, as well as the length of their lease term.  If the tenant has lived in the unit for less than one year, and their current lease does not have a term of at least one year, the landlord must give thirty day’s notice of non-renewal.  Since most residential lease terms are for at least one year, this subsection will rarely apply.

good-cause-eviction-1-678x381-1-300x169A recent article in the New York Post discusses a proposed bill relating to evictions which is being considered by the New York State legislature.  The “Good Cause” eviction bill would limit evictions in New York to only the narrowest of circumstances.

Since the expiration of the COVID-19 eviction moratorium in January, evictions have generally resumed in New York.  Under the moratorium, landlords were prevented from evicting tenants, unless they were an actual danger to people and property.  As COVID-19 waned, the Governor allowed the moratorium to expire.  As a result, landlord-tenant Courts have generally resumed normal operations, and tenants have been subject to evictions after proper Court proceedings have been held.

However, as a result of the temporary eviction moratorium, there have been some advocates who are attempting to further limit evictions, even though COVID-19 has waned and available vaccines have greatly reduced the risk factors for most individuals.  Under the proposed “Good Cause” eviction bill, landlords would not be allowed to evict tenants, except for non-payment of rent and lease violations.

maskOur readers may be pleased to hear that mask mandates are falling like dominoes throughout the area served by our attorneys.  This newfound attitude heralds a time of optimism.  However, the scars created by the COVID era remain, particularly with respect to commercial leases.  This post will examine some typical provisions in commercial leases that should be reconsidered and negotiated in light of changing times.

In many commercial leases, landlords will prefer strict definitions as to use of the premises and signage permitted on the premises.  For instance, if the tenant is a fitness facility, the landlord may draft the use clause very narrowly and identify the permitted use as a boxing fitness studio.  Should the tenant have difficulty in operating the location, he will not necessarily be able to sublet to another tenant unless the use is the same.  If this particular tenant could not operate a boxing fitness studio during a pandemic, how will he find another tenant who wants to use the space for the same narrow purpose?  As such, an experienced attorney  will ask the landlord to broaden the permitted use in the lease to fitness studio or any lawful use.

Flexibility  is also required with respect to alcohol sales, which may be restricted in a lease.  As our readers may recall, during the pandemic struggling restaurants were permitted to sell alcoholic beverages for takeout.  This was a lifeline for such businesses and should not be prohibited by a lease, which should permit alcohol sales in accordance with current law and not be further restricted by a landlord.  The open restaurants program  in New York City permitted restaurants to operate supplemental space on the sidewalk or in the street appurtenant to the restaurant.  Lease provisions requiring a tenant to keep the sidewalk clear should be modified to permit use as may be permitted by an open restaurant program.

hochul-300x169With the beginning of the COVID-19 pandemic, New York, along with many other states, adopted a law temporarily halting evictions.  In addition, there was an additional moratorium that prevented foreclosure cases from going forward in Court.

This blog post will focus on the eviction moratorium, its effects, and its expiration as of January 15, 2022.  The original moratorium went into effect in March of 2020.  The statute initially provided that if a landlord sought eviction against a tenant, the tenant could complete a form which stated that they were suffering from a COVID-19 related hardship which affected their health and ability to move, or from a financial hardship caused by COVID-19.  Once the form was completed and send to either the Court, the landlord, or the landlord’s attorney, the eviction proceeding would be stayed until the moratorium was lifted.

The main problem with this statute was that it provided a landlord no opportunity to rebut the tenant’s assertion that they were negatively impacted by the COVID-19 pandemic, and that such impact affected their ability to pay their rent, or to find new living arrangements.  A group of landlords challenged the constitutionality of that statute in a lawsuit.  Ultimately, the United States Supreme Court ruled that, in order for the statute to be constitutional, the landlords should have the right to challenge the tenant’s hardship declaration in Court.  Eventually, the moratorium statute was amended by the New York State legislature to allow landlords to request a hearing if they wanted to challenge a tenant’s hardship declaration in Court.  If the Court subsequently found that the tenant could not prove his allegations that he was suffering from a COVID-19 related hardship, then the Court could rule that the eviction moratorium did not apply to that particular case, and allow the eviction matter to proceed in its normal course.

Eviction-Notice-woth-face-mask-1280x720-1-300x169As readers of this blog may be aware, the events of 2020 and 2021 relating to the COVID-19 pandemic have had a significant effect on the status of landlord-tenant actions in New York State.  By a series of executive orders, then-Governor Cuomo stayed evictions from taking place in New York State, with the last extension of the eviction moratorium to end as of August 31, 2021.

Mr. Cuomo, however, is no longer governor of the State of New York.  Due to a series of scandals involving alleged sexual harassment, as well as his handling of nursing home patients infected with COVID-19, he resigned from his position as of August 24, 2021, and was replaced by Lieutenant Governor Kathy Hochul.

Governor Hochul, shortly after taking office, decided to take definitive action regarding the soon-to-be-expiring eviction moratorium.  She called a special session of the New York State Legislature, with the express purpose of extending the eviction moratorium.  As a result, the eviction moratorium in New York was extended through January 15, 2022.  However, due to a recent United States Supreme Court decision, landlords are permitted to have their day in Court to challenge a tenant’s claim that their ability to pay their rent was adversely affected by the COVID-19 pandemic.

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