Legal Question in Landlord & Tenant Law in New York

security

Hi, we own a 2 family home in which we have had a tenant for the past 3 months. We asked him to leave last night due to many factors, most importantly, we realized he is a drug addict and we do not want this in our home. His brother pays his rent since the tenant is recently divorced and moved back from Florida to supposedly reclaim his painting clientele before he moved. The tenants brother signed a rental agreement prepared by us and it clearly states that we do not allow tenants to live out there last months rent from their security provided when renting the apartment. The tenants brother advised my husband last night that he will not pay January 2005 rent and we should use his security. My husband advised the tenant, that if his brother, after signing the rental agreement stating he is not allowed to do this, does not pay the rent for Jan 2005 by Jan 1, 2005, that the tenant will have to vacate the premises by Jan 1, 2005 or the locks will be changed and he will have to make an appt to get his belongings. I am legally within my rights to do this. It is my understanding that tenants cannot use their security as last month's rent. What recourse do we have? Please Advise.


Asked on 12/30/04, 8:59 am

2 Answers from Attorneys
Stephen Loeb Law Office of Stephen R. Loeb

Re: security

While you are correct that a tenant cannot use a security deposit to pay the last month's rent, you CANNOT lock out your tenant prior to the termination of the leasehold, this is blatantly illegal and may subject you to criminal prosecution. You cannot ecivt a tenant prior to the termination of the lease without a judicial order. Your remedy is to keep the security deposit without need to return it, or the interest earned on it. Otherwise you have theo obligation to hold the security deposit for the tenant in a separate interest bearing accountand to return it to the tenant at the end of the leasehold along with the interest. Another remedy is that you can sue for the owed rent as well as court costs, but in the end this will probably cost you more money than you will recover should you merely hold on to the security deposit as suggested by the lessor's brother.

Should you like to discuss this or any other legal matter, you can call my office to schedule an appointment for a consultation or in the alternative, I can be reached for on-phone low-cost legal consultation at 1-800-275-5336 x0233699.

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Answered on 12/30/04, 9:33 am
Andrew Nitzberg Andrew Nitzberg & Associates

Re: security

This is a standard "landlord/Tenant" dispute and YOU MUST KNOW THE LAW TO AVOID TROUBLE.

You must speak with a lawyer because you may not avail yourself of a 'self-help' rememdy. You may only take action after getting a court order.

Please do not lock him out. You may be ok if you do that if he leaves for Florida without taking action, but that is a risk.

The best action is to begin eviction on the day that he defaults on the January rent (usually January 5th).

The first action will be a demand for rent. If he defaults, you may statrt eviction proceedings. Since the brother signed the lease, he should be sued as well. (You may also sue for legal fees.)

You are welcome to a consultation for no fee. My fee to handle all of the documents and court appearences is $300.

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Answered on 12/30/04, 5:14 pm


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