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…
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.
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.
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.
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.
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://bstoner.wpengine.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).
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.
Why is the OP writing in such a circumspect manner? Is he actually the landlord?
Try to get 75% back w/LL. Otherwise, go to the mattresses.
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?
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