Legal Question in Real Estate Law in New York
Will I lose my security deposit?
Hi, we have been living in our apt. for nearly 5 years, within the last 2 years we have new owners. Our lease is up at the end of Nov. 2000. My husband is being transferred to another state and we will be moving in Feb. 2001. We have contacted the owners and management office to discuss not renewing the lease and perhaps paying on a month to month basis for the period between the end of the lease and our move. However we have been told that in no way will they allow us to pay month to month and that we must sign and return the lease or agree that we will not renew the lease. We have had problems in the past with the owners (no gas, heat or hot water, etc) Each of those times I have filed complaints and it's been documented. We have a 13 month old daughter so this is a big issue. So if we don't sign the lease, they will evict us right? Also, if we do sign the lease and move anyway they will keep the deposit I know, but will we be responsible for the remaining amount due for the lease year? Also, what justifies us terminating the lease early? If we go through periods of no heat and water can we terminate the lease on those grounds? Thanks so much
2 Answers from Attorneys
Re: Will I lose my security deposit?
As a general rule, the landlord's recourse to your refusal to move is an eviction proceeding. If the landlord will not grant an extension, he would need to commence a "holdover" proceeding after your lease ends (i.e. November). While you didn't identify where the property is, virtually all courts allow at least a one week adjournment, especially in the holiday season. At a hearing, the landlord will claim for unpaid "use and occupancy" and you will claim diminished value due to lack of heat (a "warranty of habitability" defense). You would also have an opportunity to object to landlord's court papers or service. Presuming the landlord gets a judgment, he must also get the court to issue a warrant. This can be days or weeks depending on what clerk's office is involved. Only then is a sheriff instructed to evict, and this is proceeded by a final Sheriff's notice. As many of these cases are dismissed on technicalities, you would benefit from speaking to an attorney before the fact so you can be aware of what to look for. If you have further questions, I can be reached at 516-780-0270.
Re: Will I lose my security deposit?
If you live in New York City, I would recommend that you not re-new your lease but continue to pay rent. After your lease ends, a month-to-month tenancy is created by law. The landlord would have to bring a holdover proceeding. Assuming that you could prove that you will be moving in three months, most judges will balk at the prospect of forcing you to find a new residence and allow you to pay the monthly rent until you leave. Regardless, you should not do anything without retaining an attorney to advise you. For a referral in NYC, you can contact me at 212-208-2470. Best of luck.
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