One Day Notice of Move Out: Forfeit Security?

[TomBrooklyn]

In Brooklyn, NY (New York City), I had a tenant move out of my four family house where I also live in the apartment adjacent to her. She told me on May 31, 2003 that she was moving out the next day and she did.

This tenant received Section 8 subsidies and paid part of the rent herself. I think she had a lease at one time, but I'm not sure, and for the three years that I owned the house, she did not have a lease and I never raised her rent.

A couple of months earlier, on the outside of an envelope she slipped under my door with her rent check in it, she had written a note saying something to the effect that she was going to move out sometime in the future. No date was specified. I spoke to her immediately after that about her advisement and asked her to give me at least thirty days notice of when she would be moving and told her that I would want to show the apartment during that period.

As she did not give me 30 days notice, and in fact gave me less than 24 hours notice, I did not have the opportunity to show and rent the apartment during period.

I believe she forfeits her security deposit. Is this correct?

I rented the apartment three or four months later.

Tom

 

[HomeGuru]

In Brooklyn, NY (New York City), I had a tenant move out of my four family house where I also live in the apartment adjacent to her. She told me on May 31, 2003 that she was moving out the next day and she did.

This tenant received Section 8 subsidies and paid part of the rent herself. I think she had a lease at one time, but I'm not sure, and for the three years that I owned the house, she did not have a lease and I never raised her rent.

A couple of months earlier, on the outside of an envelope she slipped under my door with her rent check in it, she had written a note saying something to the effect that she was going to move out sometime in the future. No date was specified. I spoke to her immediately after that about her advisement and asked her to give me at least thirty days notice of when she would be moving and told her that I would want to show the apartment during that period.

As she did not give me 30 days notice, and in fact gave me less than 24 hours notice, I did not have the opportunity to show and rent the apartment during period.

I believe she forfeits her security deposit. Is this correct?

I rented the apartment three or four months later.

Tom

**A: if the tenant moved out on June 1 2003, why are you posting now? And don't tell me you still did not return her deposit and notify her in writing.

 

[TomBrooklyn]

Further accounting of security.

Another thing that may be important.

The tenant asked me for the security deposit back. I requested a contact address to send it to. She refused to provide this and said she would call me. I did a walk through and itemized certain items, namely,

1. Nail holes in walls
2. Some furnishings left in apartment that had to be thrown out.
3. One room painted purple which would require extra coats of paint and primer to cover.
4. Dozens of star, moon and sun sticky things on one bedroom ceiling.
5. Several wall hangings that would have to be removed.
6. Furniture scraping damage on wall.

The tenant called me and came to my door several times in the next couple of weeks asking for her deposit back. It was not ready and each time, I asked for a place to mail an accounting.

The accounting provided that her entire security deposit was forfeit for lack of 30 day notice and an invoice for approximately $700. for damage to the apartment.

I arranged a day for her to pick up the accounting. She did not show up. She showed up at my door about a week later with a guy. I asked her to leave and give me a place to send the accounting she refused and refused to leave. I called the police and had her removed from my property. The police advised her to sue me in Small Claims court and she did. The case is currently awaiting trial or arbitration. I intend to file a counter claim.

Did I act properly?

Tom

 

[FarmerJ]

Tom little hint here > even if you dont get a new address from a tenant send it to there last known address using a certificate of mailing (no signature needed ) . the property they rented at from you then if they hadnt turned in a forward address to the post office or given you a new address you can show to a court that you sent letter and if tenant didnt file a forward addy with post office youll have it since it would have been left by carrier anyway . Tom jhave you researched NY statutes to learn if tenants in NY state must give a new address to LLs when they move out ? Ask your clerk of the courts if you may file a counter suit for the lack of notice ( 1 months rent + and damages to unit and bring your pictures of the damage with if allowed to counter suit against tenant . ) as well as all your other documents pertaining to her having been a renter of yours like the original lease what ever copys of the section 8 docs you have .

 

[JETX]

Tom, how many units do you rent?? If six or more, you need to comply with NY Gen Obl §§ 7-101 to109 at:
http://assembly.state.ny.us/leg/?cl=49&a=24

And next time you decide to enter into the BUSINESS of being a landlord, be sure to read and understand the laws that you will be held accountable for.
Go to: http://www.nolo.com/lawstore/produc...9-2C8B-4BBF-947BCE20D59082F4/sampleChapter/12

 

[TomBrooklyn]

Tom, how many units do you rent

Go to: www.nolo.com/lawstore/products/product.cfm

Jet, I have four units of which I occcupy one.

I got the New York Landlord's Law book which you provided a link to.

Chapter 16 "Returning Security Deposits" states that in NYC a tenant with an oral month to month agreement does not have to give notice.

Would this tenant be considered under an oral month to month argreement? She recieved Section 8 assistance and had a lease at one time, but not at the time of the moveout.


Would it depend on what the lease said? If a lease runs out and the tenant stays on, do all other provisions of the lease continue on the month to month basis?

Tom

 

[JETX]

"Would it depend on what the lease said? If a lease runs out and the tenant stays on, do all other provisions of the lease continue on the month to month basis?"
*** Read the lease. Most leases provide for reversion to a month-to-month on termination of the term lease without a written renewal. Also, you need to contact the Section 8 housing folks to see what additional conditions, if any, that they put on their property (I refuse to do Section 8's).

 

[HomeGuru]

In my opinion, the tenant has a case to talk with the Attorney General or file in small claims court.

 

[JETX]

In my opinion, the tenant has a case to talk with the Attorney General or file in small claims court.

Curious.... Since the tenant clearly was in breach of the lease, why would you think that the tenant would have a small claims case??

I have found where the NY AG office has a "Tenant's Rights Guide" and here is what it says about month-to-month tenancy and security deposit refund:

Month-to-month:
"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) "

It is clear to me from the above that the landlord in this case would be reasonable to charge for the lost rent for the month that the tenant failed to 'notice'.

"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)"
Source: http://www.oag.state.ny.us/realestate/tenants_rights_guide.html

 

[HomeGuru]

Curious.... Since the tenant clearly was in breach of the lease, why would you think that the tenant would have a small claims case??

**A: thank you for your curiosity and for the cite regarding the security deposit refund.
***************

I have found where the NY AG office has a "Tenant's Rights Guide" and here is what it says about month-to-month tenancy and security deposit refund:

Month-to-month:
"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) "

It is clear to me from the above that the landlord in this case would be reasonable to charge for the lost rent for the month that the tenant failed to 'notice'.

**A: I totally agree as to the right of L to charge the tenant. My main point
was not the right of L to charge but rather that the tenant had a small claims case against L. Based on the NY security deposit refund statutes, there is no clear time period (compared to most other states) by which L was required to either refund the deposit or provide T with a breakdown of deductions. The time period is said to be a reasonable time period. Based on this, and absent clear statutory guidelines, one may conclude from case law that reasonable is said to mean within say 30-60 days. Therefore, if T vacated June 1 2003, at best the writer L should have returned the deposit or provided written notice of deduction prior to the first week of August 2003. Based on the writer's postings, the written notice of deduction or as the writer calls it "accounting" has to this current date still not been delivered to T. The law basically considers 2-3 months as a reasonable time and it has been a good 6 months, therefore it is my opinion that L did not provide the written accounting to T within a reasonable time. Hence my comment that T would have a small claims case. The writer L should have sent the accounting to the tenant's last known address via certifed rrr mail or given the papers to the T at the time the tenant visited instead of asking for the forwarding address to mail it. Then the L would have mitigated damages and have the evidence to prove that the written accounting and notice of security deposit deduction was delivered or attempted to be delivered.
**********




"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)"
Source: http://www.oag.state.ny.us/realestate/tenants_rights_guide.html

**A: L did indeed have a full right to the security deposit deduction for lack of proper notice to vacate given by T, but at this late stage since L has gone beyond the "reasonable time" period, T has a small claims case.

 

[TomBrooklyn]

I made an appointment to meet the tenant about 2 weeks after the move to give her the breakdown, but tenant did not show up. Tenant showed up unannounced about a week later with a man unknown to me and I suspected was there to assault or intimidate me. I asked them to leave, they did not and I had police remove them. I overheard police tell them to take me to court.

A week or two later I recieved notice of being sued by tenant. Tenant made no attempt to contact me after that. I still had no contact information for tenant. It did not occur to me that sending a letter to where she no longer lived would get the letter to her.

The court case has gone through several adjourments and has not been heard. It was my intention to review the security return report at the court after taking reasonable steps to get it to tenant who hid from me and did not come when she said she would.

 

[HomeGuru]

I made an appointment to meet the tenant about 2 weeks after the move to give her the breakdown, but tenant did not show up. Tenant showed up unannounced about a week later with a man unknown to me and I suspected was there to assault or intimidate me. I asked them to leave, they did not and I had police remove them. I overheard police tell them to take me to court.

A week or two later I recieved notice of being sued by tenant. Tenant made no attempt to contact me after that. I still had no contact information for tenant. It did not occur to me that sending a letter to where she no longer lived would get the letter to her.

The court case has gone through several adjourments and has not been heard. It was my intention to review the security return report at the court after taking reasonable steps to get it to tenant who hid from me and did not come when she said she would.

**A: then the matter will be ajudicated by the presiding small claims court judge.
Keep us posted.

 

[TomBrooklyn]

Tenant took me to small claims. We went to an arbitrator. I claimed most of the $700. security deposit went to repair nail holes in walls, some furniture scraping damage to walls, three coats of primer required to cover purple walls she painted in one room, removal of a bunch of childrens sticky things from a couple of ceilings, and to move out a few pieces of furniture tenant left behind. Apartment is four rooms.

I also requested $700. to keep for lack of notice. Tenant said she gave me notice written on back of envelope she paid rent with a couple of months back. Message had said something like: "I will be moving out sometime this summer."

In total I was asking to keep security and be paid an additional $500.00

It turns out I was suppossed to file a counterclaim which I didn't do. Arbitrater asked for supporting documentation of repair work. I had pictures, but did work myself and with some people I paid cash to. I had no receipts with me for paint or anything. Arbitrator gave me nothing. Decision was to give her whole security back.

 

[HomeGuru]

Tenant took me to small claims. We went to an arbitrator. I claimed most of the $700. security deposit went to repair nail holes in walls, some furniture scraping damage to walls, three coats of primer required to cover purple walls she painted in one room, removal of a bunch of childrens sticky things from a couple of ceilings, and to move out a few pieces of furniture tenant left behind. Apartment is four rooms.

I also requested $700. to keep for lack of notice. Tenant said she gave me notice written on back of envelope she paid rent with a couple of months back. Message had said something like: "I will be moving out sometime this summer."

In total I was asking to keep security and be paid an additional $500.00

It turns out I was suppossed to file a counterclaim which I didn't do. Arbitrater asked for supporting documentation of repair work. I had pictures, but did work myself and with some people I paid cash to. I had no receipts with me for paint or anything. Arbitrator gave me nothing. Decision was to give her whole security back.

**A: thanks for the update.