LAW OFFICES OF
GUS MICHAEL FARINELLA

Owner not to Discriminate:

An owner of residential property may rent it to anyone for legal purposes upon almost any terms that the owner and tenant agree. The owner may refuse to rent to anyone; however, the owner cannot refuse because of race, age, religion, gender, disability, and marital status or because the tenant has children.

Rent:

An owner is entitled to receive the rent on time and is not required to send a bill for rent to the tenant. Most lease agreements provide that rent is payable in advance at the beginning of the month. Owners may resort to summary proceedings in court to remove a non-paying tenant from possession of the premises. If rent is paid in cash, upon the tenant's request, the owner is obligated to provide a written receipt.

Owner's right to access:

The owner may enter the premises without tenant's consent if there is an emergency or if the tenant has abandoned the premises.

An owner may enter a rented unit to inspect the premises, make repairs, supply services and, if the lease so provides, to show the property to prospective purchasers, tenants and others. The owner may only enter at reasonable times and, if the lease so provides, only after advance notice. The owner may enter the premises without tenant's consent if there is an emergency or if the tenant has abandoned the premises. Tenants in multiple dwellings in cities with a population of 325,000 or more, by law, have the right to install a lock on the entry door to the dwelling unit, provided a duplicate key is given to the owner.

Maintenance of property:

By law (called the "warranty of habitability"), every written or oral lease or rental agreement for residential premises, including a mobile home, is deemed to contain a covenant and warranty by the owner or mobile home park operator that the premises leased or rented and all areas used in connection therewith in common with other tenants, are fit for human habitation and for the uses reasonably intended. Also, the occupants of the premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety. If the condition is caused by misconduct of the tenant, it is tenant's responsibility to correct the condition.

Unless the lease provides otherwise, however, repair of conditions not covered by the warranty of habitability are the tenant's obligation, unless the apartment is in a "multiple dwelling" (a building with three or more residential units). Then the owner by law is required to keep the dwelling clean and in good repair. Owners of multiple dwellings must also provide heat and hot water and local laws may require the furnishing of other services.

Tenants are responsible for all damages they, their guests or invitees cause to the premises.

Where the owner has breached the warranty, the tenant may be entitled to make the repair at owner's expense and to a reduction in rent or even possibly to terminate their tenancy. Before any tenant resorts to self-help or to a set-off against rent or termination of tenancy, the tenant may want to consult an attorney.

In all multiple dwellings there must be at least one smoke detector, which the landlord is obligated to install (although in New York City, tenants may be required to contribute to the cost).

Who may occupy?:

Owners may not restrict occupancy of residential premises to a tenant and tenant's immediate family. Residential premises may be occupied by the named tenant, the immediate family of the tenant, one additional occupant and dependent children of the occupant, provided the tenant or tenant's spouse occupies the premises as his or her primary residence. If the premises are rented to more than one tenant, then occupancy is permitted by tenants, immediate family of tenants, occupants and dependent children of occupants, provided that the total number of tenants and occupants, excluding occupant's dependent's children, does not exceed the number of tenants specified in the current lease or rental agreement, and that at least one tenant or a tenant's spouse occupies the premises as his or her primary residence. The apartment must have enough rooms for the extra occupants and the tenant needs to give the landlord written notice and names of all occupants within 30 days after they have moved in.

Oral promises which are not included in the written lease should not be relied upon

Right to assign:

A tenant may not assign the lease without the owner's written consent, unless a greater right to assign is given by a lease, law or regulation. The owner may unconditionally withhold consent without cause provided owner releases tenant from the lease, upon the tenant's request made on thirty days notice. If the owner reasonably withholds consent, there shall be no assignment and tenant is not released from the lease. If the lease is assigned with consent, then, unless the lease or document granting consent provides otherwise, tenant-assignor remains liable for performance of the lease by the assignee.

Right to sublease:

A tenant of a residential unit pursuant to a lease in a dwelling having four or more residential units has the right to sublet the premises subject to the tenant obtaining the owner's prior written consent, which consent the owner must not unreasonably withhold. This does not apply to tenants in public housing, housing for which there are constitutional or statutory criteria covering admission or to tenant's under proprietary leases for cooperative apartments. A tenant of a residential unit in a dwelling having less than four residential units may sublet the unit without consent of the owner unless the lease provides otherwise, in which event, the terms of the lease must be complied with. A tenant-sublessor remains liable for performance of the lease notwithstanding the subletting. The executor, administrator or legal representative of a deceased tenant may request owner's consent to assign or sublet. The owner may consent, deny consent or terminate the lease. If the owner unreasonably denies consent, the lease is deemed terminated. If the lease is thus terminated, the tenant's estate has no further liability in connection with the lease.

Leases:

A lease is a contract between an owner (landlord) and a tenant in which the parties agree to certain terms for the rental of property. Except as otherwise provided by law, the parties are bound by the agreed terms. A lease may be oral or written, but if it is for a term of more than one (l) year, it must be written. A written lease may avoid misunderstandings.

A lease containing uncompleted blank spaces should not be signed. Oral promises which are not included in the written lease should not be relied upon. Leases should be signed at least in duplicate and all changes in the printed or typed form should be initialed by both parties. The owner and the tenant should each receive a complete signed copy.

A written lease should set forth, at minimum, the following provisions:

a) Name and address of the owner (landlord).
b) Name and address of the tenant.
c) The purposes for which the unit may be used.
d) The address and, if appropriate, the number of the unit being leased.
e) The amount of rent.
f) The payment dates of rent.
g) The commencement and expiration dates of the lease term.
h) Any renewal or termination options.
i) Amount of security, if any.
j) Who provides and pays for utilities.
k) Who is responsible for repairs not covered by the "warranty of habitability".
l) What, if any, alterations or changes tenant is permitted to make to the unit.
m) What services, if any, in addition to those required by law, owner will provide.

Changes to agreements:

Changes to rental agreements are not enforceable unless both sides agree. Rent regulation may also prohibit changes to the agreement. In the absence of an agreement to raise the rent, an owner can either accept the lesser rent or give a notice to terminate such a periodic tenancy, at least thirty days before the final day of the next monthly term.

Lead paint disclosure:

Pursuant to a new HUD and EPA regulation, as of September 6, 1996, all residential leases for houses or apartments built before l978 (with certain limited exceptions) will require owners, who own more than 4 units, to disclose known lead-based paint and lead paint hazards to prospective tenants.

All new leases and all lease renewals entered into after September 6, 1996, must include (l) a disclosure form and 2) the pamphlet Protecting Your Family from Lead in the Home. This is solely a disclosure requirement and does not impose any affirmative obligation on the landlord beyond disclosure of known lead hazards.

Security:

An owner may require tenant to deposit money as security for performance of the rental agreement or lease. Such deposit, with interest accruing thereon, if required, until repaid to tenant or applied by owner to performance of the rental agreement or lease, continues to be the money of tenant and is held by the owner in trust and owner may not commingle the deposit with owner's personal funds. Unless the unit rented is in a building containing six or more family dwelling units, the security need not be deposited in an interest bearing account. Where the security is deposited in an interest bearing account, owner is entitled to retain one (1%) percent interest per annum as an administrative fee. If owner transfers the building, owner may transfer the security to the new owner. Rent stabilization, ETPA and similar laws generally limit an owner to taking a maximum one month's rent as a security deposit.

Right of tenant to participate in tenant's groups:

Tenants have the right to form, join or participate in the lawful activities of any group, committee or other organization formed to protect the rights of tenants, without interference, harassment, punishment, or penalization by owner. Tenants' groups have the right to meet in any location on the premises which is devoted to the common use of all tenants, in a peaceful manner, at reasonable times provided they do not obstruct access to the premises or facility.

Termination of tenancy:

A monthly tenancy or tenancy from month to month may be terminated by the landlord on thirty (30) days notice (one full month's notice outside New York City) served before the expiration of the term. A tenant may terminate a monthly or month to month tenancy in New York City without notice (unless the premises is subject to Emergency Housing Rent Control or New York City Rent and Rehabilitation Law) while outside of New York City a thirty (30) day notice is required. A tenancy for a fixed duration does not require notice to terminate. Leases may contain provisions for termination sooner than the date fixed for expiration of the term. Owners may terminate tenancies for non-payment of rent through the use of summary dispossess proceedings.

The mechanics of a landlord/tenant action holdover v. non-payment action:

Generally, an owner or landlord can bring two different kinds of landlord-tenant lawsuits: a) A non-payment proceeding, and b) a holdover proceeding. The legal papers that are served upon the tenant must clearly indicate whether the proceeding is a non-payment proceeding or a holdover proceeding.

Non-payment proceeding:

In a non-payment proceeding, the landlord is demanding that the tenant pay back rent or vacate the premises (in which event the tenant remains liable for the rent). If the tenant pays the rent demanded, the tenant can remain. Before a non-payment proceeding is begun, the landlord must make a proper demand for the rent. In certain circumstances, the rent demand can be made orally by the landlord. A written demand must state the amount of rent due to the landlord, and must state that a legal action might be started by the landlord in the event the monies are not paid.

Tenant's defenses in a non-payment proceeding:

The tenant may have certain defenses to a non-payment proceeding. Common defenses to a non-payment proceeding are a) rent has been paid; b) the amount of rent owed is disputed; and c) a breach of the warranty of habitability (see above). The payment of all of the rent (and "added rent," if any) owed is a complete defense to a non-payment action.

Holdover proceeding:

In a holdover proceeding, the landlord wants possession of his property and rent arrears, if any. While a non-payment proceeding is mainly about rent due and owing, a holdover proceeding is about possession of the premises.

The owner can bring a summary holdover proceeding one day after the lease has terminated. However, if the owner has collected rent for any periods of time after the lease terminates and before it served the tenant with court papers, then the owner may have created a month-to-month tenancy. The termination of a month-to-month tenancy requires a termination notice.

Before a holdover proceeding, other than as above, is commenced, the owner must first serve a written notice to the tenant stating the owner's intention to terminate. A lease that has expired by its terms does not require a termination notice. The termination notice should end at the conclusion of a rental period, generally the end of a month.

Warning to tenants:

A tenant should never ignore legal papers, even if the tenant believes that he or she has been improperly served. The tenant must go to court when directed and immediately raise all defenses he or she might have. If a tenant ignores legal papers, the court might enter a default judgment against the tenant, award the owner a warrant of eviction, evict the tenant, and get a Marshal or Sheriff to seize the tenant's bank accounts, salary or other property. In addition, it is possible for the court to enter a money judgment against the tenant if the tenant does not appear in court when required.

©NEW YORK STATE BAR ASSOCIATION