Forum
« next door neibour is moving out. Renovation cost »
April 16, 2009
Deposit on M-t-M Tenancy
Tenant was in a month-to-month tenancy arrangement with Landlord in a Brooklyn apartment. There are more than 6 units in the building.
Tenant gave written notice on 11/5/08 of his intent to move out on 11/28/08. In the same letter giving notice, Tenant inquired of Landlord whether and how he would be returning the 1M security deposit to the Tenant. Landlord stated that he would return the security deposit after a walk-through on the move-out date.
On the move-out date, the Landlord performed the walk-through and again stated that he would return the security deposit. He requested a forwarding address to which he could send the security deposit, which the Tenant provided by email that same day.
Several weeks passed without the return of the security deposit. The Tenant emailed and left voicemails for the Landlord inquiring when he could expect the return of the security deposit. The Landlord did not respond. To this point, no accounting for the security deposit was ever provided to the Tenant.
In April, after a sixth inquiry from the Tenant, the Landlord responded that he had kept the security deposit as recovery of unpaid rent for the month of December. Landlord argued that because Tenant failed to give 30 days' notice, Tenant was conditionally obligated to pay December rent. Because the Landlord attempted to lease the apartment for December and was unable to do so, the condition was resolved and the December rent was due.
Question 1: Was Tenant required by law (either statute or case law) to provide 30 days' notice to Landlord? If so, does anyone know what the relevant statue or case law is? RPL 232-b seems to require that within NYC, the landlord is required to give 30 days' notice to terminate a month-to-month tenancy. However, 232-b does not provide the same requirement of the tenant. 232-c seems to require a 30 day notice of both tenant and landlord, however 232-c explicitly scopes-out NYC.
Question 2: If Tenant was required to give 30 days' notice, do the Landlord's actions (written and verbal agreement to return the security deposit; not mentioning the 30 day notice period or December rent until April) amount to an implied agreement to waive the notice requirement? Can Landlord be otherwise estopped from applying the security deposit toward unpaid December rent if Tenant relied on the Landlord's statements w/r/t the security deposit before confirming his move-out date?
Note: I searched and found a couple of similar posts. However, the fact pattern here is different in at least one important way. Plus, some of the advice with respect to what the law says was inconsistent. I'd like clarification if you have any. Direction to specific statutes or case law preferred.
Comments
This might have to be tested in Small Claims but it seems it would depend to some degree on the quality of the documentation. The tenant apparently received the LL's requirement to provide thirty days notice AFTER reasonable time had been given for the landlord to respond, and after the lease was over. I believe that any small claims court judge would find in favor of the tenant. Time to push back.
Posted by: Smokychimp at April 16, 2009 5:58 PM
Was there any lease document even one held at the beginning of the tenancy that then went month to month after the intial period? If so, did it require 30 days notice of departure?
Posted by: Turtlejam19 at April 16, 2009 6:29 PM
Typical. Landlords bend over backwards not to return the deposit. You can go to court and win like SC says. Then you have to collect.
Posted by: denton at April 16, 2009 6:51 PM
OP here.
Additional Facts:
The original lease did not provide for a notice period as the lease had a specified term of one year and one half month. In any event, the statute (RPL 232) provides that Landlord's acceptance of rent subsequent to the expiry of the lease effected a month-to-month tenancy arrangement between the parties.
FWIW, Landlord is a practicing real estate attorney.
Posted by: Sandrew at April 16, 2009 7:03 PM
Does the lease require you to give notice on the first of the month? I would think you would owe rent only for the period of 30 days after 11/5 at most, not the entire month of Dec. Your landlord is also a dick, in addition to being a practicing real estate attorney.
Posted by: mopar at April 16, 2009 7:08 PM
OP again.
More Facts:
Documentation exists in the following preserved emails:
1. Tenant giving notice and inquiring about the return of security deposit on 11/5.
2. Landlord responding on 11/5 that he would "meet with [Tenant] on [his] move out date to do a walk through and give [him] back [his] deposit after the inspection.”
3-6. Four emails from Tenant following-up about the security deposit. Emails dated February (x2), March, and April.
7. Email from Landlord stating that deposit was withheld because Tenant gave fewer than 30 days' notice and was therefore "invalid until [December]."
On April 16, Tenant emailed Landlord requesting a detailed accounting of the security deposit and threatened to pursue legal remedies in Small Claims Court. Landlord maintained position that he was "required to receive 30 days [sic] notice by law" and offered to settle for half of the security deposit less specified deductions for damages to a door and for carpet cleaning. Landlord represents that he tried in good faith to find a replacement tenant and was unable to do so.
Incidentally, the apartment is still unrented.
Posted by: Sandrew at April 16, 2009 7:22 PM
My RPL references are screwed up. "232-b" should read "232-a" and "232-c" should read "232-b".
Posted by: Sandrew at April 16, 2009 7:40 PM
Second to last paragraph answers the question regarding giving notice to LL.
http://www.nyrealestatelawblog.com/2006/05/i_dont_have_a_lease_can_i_just_1.html
Posted by: modsquad at April 16, 2009 8:14 PM
Goodness.
I don't have the answer, but sounds like maybe you should take him to court.
Curious: Where is the apt and why do you think it is still vacant?
Posted by: mopar at April 16, 2009 9:32 PM
Try to get 75% back w/LL. Otherwise, go to the mattresses.
Posted by: pattunia at April 17, 2009 4:43 AM
Why is the OP writing in such a circumspect manner? Is he actually the landlord?
Posted by: daveinbedstuy at April 17, 2009 8:08 AM
Just to flip this a bit... What if the landlord came to you and gave you 23 days to move out? Would that be OK? Why didn't you give him the letter 5 days sooner?
Landlords viewpoint... your letter went in effect on 12/5. Which would already be 5 days late on Dec's rent.
Tenants viewpoint... Even if letter went into effect on 12/5, why do I have to pay for a full month?
When you pay monthly rent, you are not paying for the past month's usuage, you are 'prepaying' for the month you are about to occupy.
I think the Law favors the the LL here.
Posted by: Colonel Steve Austin at April 17, 2009 9:00 AM
Mopar - Thanks for the pointer. Though I note that one lawblog's interpretation of RPL 232 may differ from another. See for e.g. here: http://www.brownstoner.com/forum/archives/2009/02/security_deposi_9.php where a commenter identifying himself as an attorney notes the following: "Month to month tenancies, when broken by either the landlord or the tenant, require 30 days notice. Feel free to read up on NY L&T law and see it for yourself."
I'd rather not say where the apartment is located with any more specificity.
Daveinbedstuy - I wrote the facts in third person so as to maintain as neutral a stance as possible, both in appearance and in fact (though I recognize the latter my not be achievable). I also do a good deal of technical writing in my profession and am accustomed to writing in that style. It was not my intent to seem dodgy or roundabout. If it suits you to know, I am Tenant.
Colonel - If the landlord had given me 25 days' notice to move out, that would not be okay. I would have protested, citing RPL 232-a. The landlord maintains that the law is reciprocal; I disagree. I'm happy to let a judge decide. Now you may question whether a law that requires 30 days' notice of the landlord but not of the tenant is fair. Reasonable minds may disagree, but I am sympathetic to the law if it holds the landlord to a higher standard than the tenant--the tenant (a) having more at stake, and (b) being in a position of less relative power.
Also, your summaries of the Landlord's and Tenant's views are both flawed. The landlord maintains that the notice letter dated 11/5 is effective 11/30, not 12/5 or 12/31. Tenant's view is that Landlord has no legal claim to any December rent against which he can lawfully apply the security deposit. This view is based on a combination of interpretation of statute (RPL 232) and by invocation of promissory estoppel (either are sufficient).
Posted by: Sandrew at April 17, 2009 2:55 PM
Sandrew, nail the LL in Small Claims. In SC, the fact that he is a rel estate lawyer will count dramatically AGAINST him, not for him -- it will merely bolster the impression he is preying on you. If it were television, SC is more like the Peoples Court than Law and Order, and they wouldn't put up with that kind of manipulation.
Posted by: Smokychimp at April 17, 2009 3:34 PM
30 days from the first of a month is fairly standard for a LL to remove a tenant. It would have helped your case if you had gotten the letter on 11/1. Still, with no other documentation in place (and if it wasn't a stabilized unit) I think the LL will have some trouble keeping your deposit if you take him to small claims court. Just have all your docs in order.
Posted by: corolla at April 17, 2009 3:57 PM
It's funny how so many lawyers are basically educated crooks.
Sure, this tenant technically didn't provide 30 days notice to the lawyer landlord, but only a low life sleaze bag attorney landlord would legally steal a month's rent just because notice came a few days late.
Of course most lawyers are not crooks, but I've had enough bad experiences with shady ones, that I never trust a lawyer without a personal reference.
There are certainly a lot of folks who go into law with the clear intent of screwing other people over.
Posted by: IronBalls at April 17, 2009 7:21 PM
"Typical. Landlords bend over backwards not to return the deposit. You can go to court and win like SC says. Then you have to collect." Seriously? I think it is more like tenants bend over backwards not to pay the last month's rent. This particular landlord is a complete dick if he is basing his reasoning on the 5 days. Or you are not being upfront with us on what state you left the apartment in and he nailed you on a technicality.
Posted by: bqe1970 at April 18, 2009 9:48 PM
I thought a landlord was not allowed to use security as last months rent? Security is supposed to be kept in a special account, and used only for damage? Or am I mis-remembering?
Posted by: Violet at April 20, 2009 4:16 PM
actually I think you are all wrong. This is a month to month tenancy not a day to day one or a month to month one with a midmonth termination date. The law requires a 30 day notice to be effective. Once the notice is given the tenancy terminates on the first of the month following the 30 days not at 30 days after the notice is given. The tenant is required to give the same notice.
Whether the landlord should give the money back is another issue and I don't think the course of conduct rises to the level of promissory estoppel.
These things are strictly construed. I am sure of this? no but if you want to get the money back that is what small claims court are for.
Posted by: smeyer418 at April 20, 2009 4:42 PM
BTW small claims courts in NY have really two parts. One is the arbitration part and one is before the court. People's court on TV is an arbitration part(sort of). In the arbitration part the hearing office/judge/arbitrator doesn't really have to follow the law, but they generally do. There is no appeal from what the arbitrator does(except for circumstances that I won't describe here). Before the court they do have to follow the law and an appeal is possible. The way it works in NY Small Courts is when you get to court they will tell you that either side can stand up and say before the Court and a Judge will hear the case when they get around to it which may be more than one night. They have many volunteer arbitrators available and you can chose to get an immediate hearing if you want...but you give up any right to appeal but it is your and your opponents choice...
Posted by: smeyer418 at April 20, 2009 5:08 PM
smeyer418 - Thank you for your comments. I agree that tenancy in this case is month-to-month. While daily or mid-monthly pro-rating might be a fair means to settle this rent dispute outside of court (should both parties agree), the law does not contemplate such an idea.
What I am most interested in is why you and others believe that the law holds that "the tenant is required to give the same [30 days'] notice." I am unable to find a statute or case law supporting this interpretation.
If such a law can be shown to exist, I am also interested in whether Tenant can invoke promissory estoppel on the grounds that: (a) Landlord represented that he would return the security deposit and (b) Tenant relied on this representation to his detriment. You seem to think not. I'd be keen to hear you elaborate on this view. I have consulted with some friends who are familiar with estoppel and they seem to think it may indeed be the best case. Although, they stress that the concepts of reliance and detriment will be both be difficult to demonstrate in court.
I also appreciate your insights into the legal realism of the matter. I am currently leaning toward small claims court.
Posted by: Sandrew at April 20, 2009 5:50 PM
what was the detrimental reliance? The Tenant announced that he was leaving. Just because the landlord says he is going to walk through before he decides and then says the notice was insufficient(within some period of time) doesn't mean anything as far as a promissory estoppel goes. So the tenant expected his money back that is not sufficient for detrimental reliance. Something more has to take place. I don't know what you told your friends or whether they are lawyers and/or whether they were just trying to get rid of you. promissory estoppel is more than I'll send you a check..
the mutual obligation is implied to make the law constitutional(you know equal protection of the law issues)...
if the landlord has to give the notice to the tenant to get the apartment back the tenant is under equal notice requirements in surrendering the apartment and ending his obligation to pay.
Posted by: smeyer418 at April 20, 2009 6:14 PM
The facts [and commentary in brackets] relevant to my detrimental reliance argument are as follow:
1. Tenant gives end-of-November notice to Landlord in writing on 11/5, inquiring when he would get the security deposit back.
2. Landlord responds in writing on 11/5 that he will return the deposit after a walk-through on the move-out date. [I agree that this is not an unconditioned promise to return the deposit. However, any conditions a reasonable tenant would imply from this statement would necessarily to relate to the walk-through itself and not to the timing thereof, which was already understood by both parties to be in November.]
3. Tenant, relying to his detriment on the statement from his landlord that he would return the deposit, subsequently signs a lease on another apartment with a November 28th start date. [Key to this being detrimental reliance is whether Tenant would have (and could have) changed his move-out date to the end of December had Landlord instead told Tenant that he would not be receiving his deposit because he owed December rent. Additional facts important to the resolution of this 'what-if' are: that the Tenant had no arrangements for December housing at the time the representation was made, that Tenant was paying above-market rent on the apartment, that the Tenant had previously revised a scheduled move-out date with the same Landlord to no protest, that Tenant's primary motivation for moving was to pay lower rent for a similar apartment in the same neighborhood, and that Tenant was otherwise unconstrained from remaining in the month-to-month arrangement through December for a move-out date of December 31st.]
Your appeal to the 14th Amendment is interesting. I'll take that into consideration. Just out of curiosity, are you suggesting a heightened standard of review in applying equal protection here, or merely the "rational relation to a legitimate government interest" standard? That is, do you view landlords (as a group) as a "suspect" or "quasi-suspect" class (akin to race or gender, respectively); do you view the right to 30 days' notice as a fundamental right (one of these views being necessary for a heightened standard)?
Thanks again, smeyer. Your comments are invaluable.
Posted by: Sandrew at April 20, 2009 10:09 PM
sounds like a law student to me...I decline to give you a brief and not just advice...a brief you have to pay for.
Posted by: smeyer418 at April 21, 2009 3:47 AM
Heh. I imagine I do sound like a law student (or perhaps an overconfident new lawyer). I assure you I am neither. My having a monetary interest and being a curious person are to blame for my persistence. And you can blame my college professors for my rudimentary understanding of the law (took a few elective courses on torts and employment law several years ago). I admit I asked for a lot, and you've kindly given me plenty go on. Thanks again for the advice and insights. If things get ugly, I may have to hire you for that brief!
Posted by: Sandrew at April 21, 2009 2:20 PM
Post a comment
Please be patient while your comment is published. It may take a moment.