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When a landlord terminates a New York tenancy, how much time does the tenant have before the landlord can file for eviction? If the notice I got was too short, how can I fight it?
When landlords want to terminate a tenancy,
they must give tenants termination notices, which often give the tenant a certain
number of days to fix, or cure the problem (such as pay the rent), or face an
eviction lawsuit. Sometimes the notice does not give the tenant a chance to
save the tenancy—he must move, period.
The period of time before
the landlord can file for eviction is called the “notice period.” Notice
periods vary according to the reason for the termination, and whether the rental
is in New York City or in the rest of the state. The periods differ according
to the reason for the termination. To complicate matters further, special rules
apply to rent-controlled units and those under state-wide rent stabilization.
Before you can know
for sure that you got a “short” termination notice, you’ll need to know how how
much notice you were entitled to get.
Month-to-month tenancies may be ended for
any reason (or no reason), as long as the reason isn’t retaliatory or
discriminatory. For example, a landlord can’t end a monthly tenancy because she
is annoyed at her tenant’s reporting code violations, or because she’s learned
that he follows a particular religion. These endings are known as “not for
cause” terminations, because to prevail, the landlord need not give a reason.
Landlords must give 30 days’ written notice.
The notice must state the exact date the tenancy will end, and warn the tenant
that the landlord will begin eviction proceedings if the tenant doesn’t comply.
When to serve the notice is tricky: Assuming the tenancy runs from the first
day of the month, for a 30-day month, the notice must be served before the first
of the month; for a 31-day month, it can be served by the first day of the
month; and for February, it must be served on or before January 29. It doesn’t
matter if the termination date falls on a weekend or holiday.
For rentals outside NYC, landlords must give
one month’s notice. The notice must state the termination date, which must be
the last day of the rental term, but needn’t warn the tenant of consequences
for failure to move out. The notice may be oral or in writing (and must be in
writing if the rental agreement provides for written notice). For example, if
rent is paid on the first of the month, the notice must be served at least one
day prior to the last day of the month.
Landlords can terminate these tenancies only
for specified reasons, or “for cause,” explained below. “Not for cause” terminations
are not available.
If tenants don’t pay the rent when it’s due, landlords for all
rental types and locations can deliver a “rent demand,” which is a three-day
notice to pay the rent by the end of the third day, or move out. When tenants
are chronically late with the rent, landlords sometimes try to send a
termination notice that does not provide for a time period to pay the rent, but
these are rarely successful if the tenant has paid by the time the eviction
lawsuit is heard in court.
Landlords may also terminate month-to-month
tenancies and leases when the tenant has done something wrong or the landlord
has a valid reason. Sometimes, tenants get a chance to correct the problem and
stay; but for serious matters, the termination notice may simply give the
tenant a certain number of days to move. Notice periods range from zero (for
illegal use of the property) to one month.
For cause reasons include rent nonpayment,
violation of a substantial lease obligation, illegal or immoral use, conducting
or permitting a nuisance, objectionable conduct, refusal to provide access; for
rent controlled and stabilized rentals only, refusal to renew a lease, non-primary
residence, recovery for owner’s use, withdrawal of the unit from the market,
It’s very important for landlords to use the
right notice in the circumstances, and to give the tenant the correct amount of
time to either cure the problem or move out (or simply move out). But suppose
your landlord gave you, a tenant living in rent controlled NYC property, ten
days to move out, following your refusal to allow access to the landlord. You’re
legally entitled to one month, but if the landlord sues to evict on the
eleventh day, that’s short notice.
If you don’t move and provoke an eviction
lawsuit, you may think that you will win, at least temporarily, because the
landlord made a mistake. Unfortunately, there’s no simple answer to how a judge
will handle a short notice. Some judges, but not all, will toss the landlord’s
lawsuit and force him to start over, with a correct termination notice and
period. This will buy you a bit of time—you can be sure the landlord will do it
right next time.
If you’re planning on
defending against eviction based on short notice, you must get some advice from
an experienced, local lawyer, who can advise you on how judges in your area
will likely treat a case like yours. Even if you decide to ultimately handle
the eviction yourself, it’s worth it to consult someone who is in the trenches
every day. If you learn that in a case like yours, a notice problem is not
likely to result in a dismissal, you may want to adjust your strategy. On the
other hand, even a short discussion with a knowledgeable lawyer may uncover
other flaws in the landlord’s process that may support your wish to stay.
If you find that your
case stands a good shot at being dismissed, and you want to remain even for a
short while longer, you may want to stay and fight and offer your defense.
Think long and hard about whether the added time will be worth the money and
aggravation you’ll spend in going to court—and remember, no legal outcome is
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Landlord and Tenant (1081)