New York Landlord
Tenant Law Summary
WHAT IS A LEASE?
A lease is a contract between a
landlord and tenant which contains the terms and conditions of the
rental. It cannot be changed while it is in effect unless both
parties agree. Leases for apartments which are not rent stabilized
may be oral or written. However, to avoid disputes the parties may
wish to enter into a written agreement. An oral lease for more than
one year cannot be legally enforced. (General Obligations Law §
5-701)
At a minimum, leases should specify
the names and addresses of the parties, the amount and due dates of
the rent, the duration of the rental, the conditions of occupancy,
and the rights and obligations of both parties. Except where the law
provides otherwise, a landlord may rent on such terms and conditions
as are agreed to by the parties.
Leases must use words with
common and everyday meanings and must be clear and coherent.
Sections of leases must be appropriately captioned and the print
must be large enough to read easily. (General Obligations Law §
5-702; C.P.L.R. § 4544)
Unless the lease states otherwise,
the apartment must be made available to the tenant at the beginning
of the tenancy. If the apartment is not available when agreed, the
tenant has the right to cancel the lease and obtain a full refund of
any deposit. (Real Property Law § 223-a)
Lease provisions which exempt
landlords from liability for injuries to persons or property caused
by the landlord's negligence -- or that of his employees -- are null
and void. Further, a lease provision that waives the tenant's right
to a jury trial in any lawsuit brought by either of the parties
against the other for personal injury or property damage is also
null and void. (General Obligations Law § 5-321; Real Property Law
§ 259-c)
If the court finds a lease or any
lease clause to have been unconscionable at the time it was made,
the court may refuse to enforce the lease or the clause in question.
(Real Property Law § 235-c) A lease provision which requires a
tenant to pledge his/her household furniture as security for rent is
void. (Real Property Law § 231)
Tenants protected by rent
stabilization have the right to either a one or two year lease when
they move into an apartment except under certain circumstances such
as, for example, when the apartment is not used as the tenant's
primary residence. Rent stabilized tenants must also be given a rent
stabilization lease rider, prepared by the New York State Division
of Housing and Community Renewal ("DHCR"), which
summarizes their rights under the law and provides specific
information on how the vacancy rent was calculated. For certain
luxury apartments, a landlord may seek DHCR approval to deregulate
the rent to be charged.
New York City rent stabilized tenants
are entitled to receive from their landlords a fully executed copy
of their signed lease within 30 days of the landlord's receipt of
the lease signed by the tenant. The lease's beginning and ending
dates must be stated. (Rent Stabilization Code ("RSC") §2522.5)
RENEWAL LEASES
Except for rent-regulated apartments,
a tenant may only renew the lease with the consent of the landlord.
A lease may contain an automatic renewal clause. In such case, the
landlord must give the tenant advance notice of the existence of
this clause between 15 and 30 days before the tenant is required to
notify the landlord of an intention not to renew the lease. (General
Obligations Law § 5-905)
The renewal leases for rent
stabilized tenants must be on the same terms and conditions as the
prior lease and rent increases, if any, are limited by law but may
provide for a rent increase according to rates permitted by the Rent
Guidelines Board. Rent stabilized tenants may choose either a
one-year or a two-year renewal lease. For New York City
rent-stabilized tenants, the landlord must give written notice to
the tenant of the right to renewal no more than 150 days and not
less than 120 days prior to the end of the lease. After the notice
of renewal is given, the tenant has 60 days in which to accept. If
the tenant does not accept the renewal offer within the prescribed
time, the landlord may refuse to renew the lease and seek to evict
the tenant through court proceedings.
MONTH-TO-MONTH TENANTS
Tenants who do not have leases and
pay rent on a monthly basis are called "month-to-month"
tenants. In localities without rent regulations,
tenants who stay past the end of a lease are treated as
month-to-month tenants if the landlord accepts their rent. (Real
Property Law § 232-c)
A month-to-month tenancy outside New
York City may be terminated by either party by giving at least one
month's notice before the expiration of the term. For example, if
the rent is due on the first of each month, the landlord must inform
the tenant by September 30th before the October rent is due that he
wants the tenant to move out by November 1st. The termination notice
need not specify why the landlord seeks possession of the apartment.
Such notice does not automatically allow the landlord to evict the
tenant. A landlord may raise the rent of a month-to-month tenant
with the consent of the tenant. If the tenant does not consent,
however, the landlord can terminate the tenancy by giving
appropriate notice. (Real Property Law § 232-b)
In New York City, the landlord must
serve the tenant with a written termination giving 30 days notice
before the expiration of the term. The notice must state that the
landlord elects to terminate the tenancy and that refusal to vacate
will lead to eviction proceedings. (Real Property Law § 232-a)
RENT
RENT CHARGES
Where an apartment is not subject to
rent stabilization or rent control or other rent regulation, a
landlord is free to charge any rent agreed upon by the parties. If
the apartment is subject to such rent regulation, the rent and
subsequent rent increases are set by law. A tenant may challenge the
regulated rent with the DHCR. If the challenge is upheld, DHCR will
order a refund of any overcharges plus interest and, where
appropriate, it may assess penalties.
Landlords of rent stabilized
buildings may seek rent increases for certain types of building-wide
major capital improvements (MCI), such as the replacement of a
boiler, and for new services, new equipment or improvements to an
apartment in accordance with the law and regulations. Under certain
circumstances, a landlord may also apply for a hardship rent
increase.
Landlords must provide tenants with a
written receipt when rent is paid in cash, a money order, a
cashier's check or in any form other than the personal check of a
tenant. Where a tenant pays the rent by personal check, (s)he may
request in writing a rent receipt from the landlord. The receipt
must state the payment date, the amount, the period for which the
rent was paid, and the apartment number. The receipt must be signed
by the person receiving the payment and state his or her title.
(Real Property Law § 235-e)
It is illegal for any person to
require a prospective tenant to pay a bonus -- commonly called
"key money" -- above the lawful rent and security deposit
-- for preference in renting a vacant apartment. (Penal Law §
180.55) Key money is not to be confused with fees that may be
legally charged by a licensed real estate broker. (See the section
below on "Real Estate Brokers")
RENT OVERCHARGES
In New York City and certain
communities in Nassau, Rockland and Westchester counties where rent
stabilization laws apply, the landlord may not charge more than the
legal-regulated rent. Under the housing law, landlords must register
each rent-stabilized apartment with DHCR and provide tenants
annually with a copy of the registration statement. Tenants may also
get a copy of the rent history for their apartment directly from
DHCR. A tenant may only challenge rents and collect any overcharges
going back four years from the tenant's filing a complaint. The
tenant is also entitled to recover interest, plus reasonable costs
and attorney's fees, for the overcharge proceeding.
In addition, if the overcharge is
willful, the landlord is liable for a penalty of three times the
amount of the overcharge. The penalty includes the amount of the
overcharge itself. The landlord has the burden of proving the
overcharge is not willful. This treble damages penalty is limited to
two years. Contact DHCR if you believe you are being overcharged.
RENT SECURITY DEPOSITS
Virtually all leases require tenants
to give their landlords a security deposit. The security deposit is
usually one month's rent. The landlord must return the security
deposit, less any lawful deduction, to the tenant at the end of the
lease or within a reasonable time thereafter. A landlord may use the
security deposit: (a) as reimbursement for the reasonable cost of
repairs beyond normal wear and tear, if the tenant damages the
apartment; or (b) as reimbursement for any unpaid rent.
Landlords, regardless of the number
of units in the building, must treat the deposits as trust funds
belonging to their tenants and they may not co-mingle deposits with
their own money. Landlords of buildings with six or more apartments
must put all security deposits in New York bank accounts earning
interest at the prevailing rate. Each tenant must be informed in
writing of the bank's name and address and the amount of the
deposit. Landlords are entitled to annual administrative expenses of
1% of the deposit. All other interest earned on the deposits belongs
to the tenants. Tenants must be given the option of having this
interest paid to them annually, applied to rent, or paid at the end
of the lease term. If the building has fewer than six apartments, a
landlord who voluntarily places the security deposits in an interest
bearing bank account must also follow these rules. For example: A
tenant pays a security deposit of $400. The landlord places the
deposit in an interest bearing bank account paying 2.5%. At the end
of the year the account will have earned interest of $10.00. The
tenant is entitled to $6.00 and the landlord may retain $4.00, 1% of
the deposit, as an administrative fee.
If the building is sold, the landlord
must transfer all security deposits to the new owner within five
days, or return the security deposits to the tenants. Landlords must
notify the tenants, by registered or certified mail, of the name and
address of the new owner. Purchasers of rent stabilized buildings
are directly responsible to tenants for the return of security
deposits and any interest. This responsibility exists whether or not
the new owner received the security deposits from the former
landlord.
Purchasers of rent-controlled
buildings or buildings containing six or more apartments where
tenants have written leases are directly responsible to tenants for
the return of security deposits and interest in cases where the
purchaser has "actual knowledge" of the security deposits.
The law defines specifically when a new owner is deemed to have
"actual knowledge" of the security deposits.
When problems arise, tenants should
first try to resolve them with the landlord before taking other
action. If a dispute cannot be resolved, tenants may contact the
nearest local office of the Attorney General, listed at the end of
this booklet. (General Obligations Law, Article 7)
LEASE SUCCESSION OR
TERMINATION
SUBLETTING OR ASSIGNING LEASES
Subletting and assignment are methods
of transferring the tenant's legal interest in an apartment to
another person. A sublet transfers less than the tenant's entire
interest while an assignment transfers the entire interest. A
tenant's right to assign the lease is much more restricted than the
right to sublet.
A tenant may not assign the lease
without the landlord's written consent. The landlord may withhold
consent without cause. If the landlord reasonably refuses consent,
the tenant cannot assign and is not entitled to be released from the
lease. If the landlord unreasonably refuses consent, the tenant is
entitled to be released from the lease after 30 days notice.
Tenants with leases who live in
buildings with four or more apartments have the right to sublet with
the landlord's advance consent. The landlord cannot unreasonably
withhold consent. If the landlord consents to the sublet, the tenant
remains liable to the landlord for the obligations of the lease. If
the landlord denies the sublet on reasonable grounds, the tenant
cannot sublet and the landlord is not required to release the tenant
from the lease. If the landlord denies the sublet on unreasonable
grounds, the tenant may sublet. If a lawsuit results, the tenant may
recover court costs and attorney's fees if a judge rules that the
landlord denied the sublet in bad faith.
These steps must be followed by
tenants wishing to sublet:
1) The tenant must send a written
request to the landlord by certified mail, return-receipt
requested. The request must contain the following information: (a)
the length of the sublease; (b) the name, home and business
address of the proposed subtenant; (c) the reason for subletting;
(d) the tenant's address during the sublet; (e) the written
consent of any co-tenant or guarantor; (f) a copy of the proposed
sublease together with a copy of the tenant's own lease, if
available.
2) Within 10 days after the mailing
of this request, the landlord may ask the tenant for additional
information to help make a decision. Any request for additional
information may not be unduly burdensome.
3) Within 30 days after the mailing
of the tenant's request to sublet or the additional information
requested by the landlord, whichever is later, the landlord must
send the tenant a notice of consent, or if consent is denied, the
reasons for denial. A landlord's failure to send this written
notice is considered consent to sublet.
4) A sublet or assignment which
does not comply with the law may be grounds for eviction.
In addition to these sublet rules,
there are additional requirements limited to rent stabilized
tenants. These rules include the following:
- The rent charged to the subtenant
cannot exceed the stabilized rent plus a 10% surcharge payable to
the tenant for a furnished sublet. Additionally, the stabilized
rent payable to the owner, effective upon the date of subletting,
may be increased by a "sublet allowance" equal to the
vacancy allowance then in effect. A subtenant who is overcharged
may file a complaint with DHCR or may sue the prime tenant in
court to recover any overcharge plus treble damages, interest, and
attorneys' fees. (RSC § 2525.6(e))
- The prime tenant must establish
that at all times he/she has maintained the apartment as a primary
residence and intends to reoccupy it at the end of the sublet.
- The prime tenant, not the
subtenant, retains the rights to a renewal lease and any rights
resulting from a co-op conversion. The term of a sublease may
extend beyond the term of the prime tenant's lease. The tenant may
not sublet for more than two years within any four-year period.
(Real Property Law §226-b, RSC §2525.6)
LEASE SUCCESSION RIGHTS
Family members living in an apartment
not covered by rent control or rent stabilization generally have no
right to succeed a tenant who dies or permanently vacates the
premises. The rights of a "family member" living in a rent
controlled or rent stabilized apartment to succeed a tenant of
record who dies or permanently vacates are covered by DHCR
Regulations.
Under these regulations, a
"family member" is defined as husband, wife, son,
daughter, stepson, stepdaughter, father, mother, stepfather,
stepmother, brother, sister, grandfather, grandmother, grandson,
granddaughter, father-in-law, mother-in-law, son-in-law or
daughter-in-law of the tenant; or any other person residing with the
tenant in the apartment as a primary resident who can prove
emotional and financial commitment, and interdependence between such
person and the tenant.
A family member would succeed to the
rights of the tenant of record upon the tenant's permanent departure
or death, provided the family member lived with such a primary
resident either (1) for not less than two years (one year in the
case of senior citizens who are 62 years or older, and disabled
persons) or (2) from the commencement of the tenancy or the
relationship (if the tenancy or relationship were less than two
years or one year old, as the case may be). (RSC § 2523.5)
SENIOR CITIZEN LEASE TERMINATIONS
Tenants or their spouses living with
them, who are sixty-two years or older, or who will attain such age
during the term of their leases, are entitled to terminate their
leases if they relocate to an adult care facility, a residential
health care facility, subsidized low-income housing, or other senior
citizen housing.
When such tenants give notice of
their opportunity to move into one of the above facilities, the
landlord must release the tenant from liability to pay rent for the
balance of the lease and adjust any payments made in advance.
Senior citizens who wish to avail
themselves of this option must do so by written notice to the
landlord. The termination date must be effective no earlier than
thirty days after the date on which the next rental payment (after
the notice is delivered) is due. The notice is deemed delivered five
days after mailing. The written notice must include documentation of
admission or pending admission to one of the above mentioned
facilities. For example, a senior citizen mails a notice to the
landlord of his or her intention to terminate the lease on April 5;
the notice is deemed received April 10. Since the next rental
payment (after April 10) is due May 1, the earliest lease
termination date will be effective June 1.
Anyone who interferes with the
tenant's or his or her spouse's removal of personal effects,
clothing, furniture or other personal property from the premises to
be vacated will be guilty of a misdemeanor.
Owners or lessors of a facility of a
unit into which a senior citizen is entitled to move after
terminating a lease, must advise such tenant, in the admission
application form, of the tenant's rights under the law. (Real
Property Law §227-a.)
LEASE TERMINATIONS FOR MILITARY
PERSONNEL
Individuals entering or called to
active duty in the military service may terminate a residential
lease if: (1) the lease was executed by the service member before
he/she entered active duty; and (2) the leased premises have been
occupied by the member or his/her dependents. Any such lease may be
terminated by written notice delivered to the landlord at any time
following the beginning of military service. Termination of a lease
requiring monthly payments is not effective until 30 days after the
first date on which the next rent is due. For example, if rent is
due on the first day of the month, and notice is mailed on January
1, then rent is next due on the first of February and the effective
date of lease termination is the first of March (N.Y. Military Law
§ 309).
EVICTION
Following appropriate notice, a
landlord may bring a summary non-payment court proceeding to evict a
tenant who fails to pay the agreed rent when due and to recover
outstanding rent. A landlord may also bring a summary holdover
eviction proceeding if, for example, a tenant significantly violates
a substantial obligation under the lease, such as using the premises
for illegal purposes, committing or permitting a nuisance, or
staying beyond the lease term without permission. (Real Property
Actions Proceedings Law ("RPAPL") § 711)
To evict a tenant, a landlord must
sue in court and win the case. Only a sheriff, marshal or constable
can carry out a court ordered warrant to evict a tenant. (RPAPL §749)
A landlord may not take the law into his/her own hands and evict a
tenant by use of force or unlawful means. For example, a landlord
cannot use threats of violence, remove a tenant's possessions, lock
the tenant out of the apartment, or willfully discontinue essential
services such as water or heat. (Real Property Law §235) When a
tenant is evicted, the landlord may not retain the tenant's personal
belongings or furniture.
A tenant who is put out of his/her
apartment in a forcible or unlawful manner is entitled to recover
triple damages in a legal action against the wrongdoer. Landlords in
New York City who use illegal methods to force a tenant to move are
also subject to both criminal and civil penalties. Further, the
tenant is entitled to be restored to occupancy. (RPAPL §713, §853)
Need
Help? Visit our free online discussion
forum
|