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Steven Warren Smollens

Steven Smollens’s Answers

8,175 total

  • Is a landlord under obligation or duty to mitigate potential damages or losses to co-tenants who are having a falling out?

    Co-tenants (2) are having a falling out, nuisance complaints among each other, threats to involve police, remote chance of violence but possible nonetheless and the packing up and leaving by one or both which could cause a loss to the landlord as ...

    Steven’s Answer

    Dear Ossining Property Owner:

    A landlord has power to end a month to month tenancy at any time and does not require a reason to support the decision to end the tenancy. A landlord is entitled to rent for the last month (rent is due on September 1 even when the landlord served a tenancy termination notice ending the tenancy on September 30) but do not count on receiving any more rent after serving the termination notice.

    A month to month tenant has liability for lost rent other than rent incurred during the tenancy. In your case, the tenant would owe September rent, but after October 1, you need a money judgment for the past rent and for "use and occupancy" after ending the tenancy through the date when the eviction occurs. Good luck on collecting a money judgment from an evicted tenant.

    Unlike a tenant with a lease who owes the landlord all rent remaining unpaid through the term of the lease until the apartment is rented again, a month to month tenant does not have that liability.

    There is no entitlement to a nonpayment proceeding once the landlord terminates the tenancy.

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  • Rent payment from company

    I allowed tenants who are moving out of state for new job without deposits. Tenants claimed company pays rent, and rent will be directly paid to me, landlord. This has been confirmed by tenant’s supervisor who called for rental situation, and nu...

    Steven’s Answer

    Dear New York Property Owner:

    Your statement suggests you do not have a written lease and so, your remedy is termination of the month to month tenancy followed by an eviction in NYC Housing Court.

    If you do have a lease, serve a written rent demand on the tenant named in the lease in the manner provided by the controlling statute and commence a nonpayment summary proceeding.

    New York rules of evidence will likely prevent you from reliance on any sms and over the phone statements, since the written lease likely excludes any terms of the agreement that are not contained in the lease.

    In the lawsuit and rent demand, the "tenant" is the person or entity named in the lease, and not the person residing in the apartment if that person is not identified as the tenant in the lease. Your "tenant" is the person or entity named as tenant and who also signed the lease as tenant. The lease and lease alone sets the terms for the tenancy and who pays rent to the landlord.

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  • When is one month's written notice to terminate considered "given" if only mailed?

    If one month's notice to terminate in NYS (outside of NYC) is given by certified mail for a month to month tenancy when is it considered served or given? At it's mailing, upon receipt (return receipt verified or tracking) or is there a period of t...

    Steven’s Answer

    Dear Cortlandt Manor Tenant:

    Unlike the NYC termination notice where the manner of service is dictated by the statute, the New York State statute does not impose a method for service or even that the notice is written. So judges make the "law" relating to the notice made and the service of the notice. Return Receipt Requested is usually viewed as a more restrictive method than ordinary certified mail, or regular mail with a certificate of mailing, or overnight mail, or personal in hand delivery. There is some case law that suggests a need to add an additional five days to the timeline for any notice sent by mail. Service does not require receipt or actual delivery, In your example the notice made it to the mailbox before the end of the current month, and so, was certainly mailed before the end of the month. That should be sufficient, since there is no requirement for the landlord to daily check a mailbox or even look for mail at all.

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  • Rent stabilized vs deregulated apartments

    What are the significant differences between in NY? in terms of legal protections when it comes to rent increases, eviction, repairs not being made etc

    Steven’s Answer

    Dear New York Tenant:

    There is abundant literature available in print and online about rent regulation and the enhanced tenancy rights derived by the Rent Stabilization Law.

    In a nutshell, a free market tenant (all tenants were subject to the "market" prior to rent regulation) has no statutory protection for a renewal lease, for an affordable rent increase, for succession rights to family members. Rent Stabilized tenants expect an offer of lease renewal in advance of any expiring lease, and to regulated rent increases, (as determined annually by the Rent Guidelines Board). Rent Stabilized tenants are protected against unreasonable refusal to renew a lease, have the right to sublease an apartment without fear the landlord would end the tenancy. Rent Stabilized tenants are protected against demands for exorbitant security deposits (no law sets the limit in market housing)

    All New York tenants are entitled to repairs but a Rent Stabilized tenant knows that demanding repairs will not get in the way of a renewal lease and a market tenant knows there is no expectation of a renewal lease. Landlords generally tend to count the repairs requested by a market tenant.

    In short, if you have no need to live in an apartment longer than one or two years, then you likely are a good candidate for a market rate apartment.

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  • What to do when landlord of deceased mother is trying to start putting her stuff on the curb?

    Mother passed away on July 27th. The hospital had old contact information and wasn't able to contact anyone. We just found out on Friday, August 21. The original tenant was my father and my mother moved in with him a little over 2 years ago. After...

    Steven’s Answer

    Dear Massapequa Family Member:

    Someone in the family needs appointment as the temporary administrator of the estate in order to gain a court order enjoining the landlord from the act of committing an illegal eviction.

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  • Extending sublease with illusory tenancy argument?

    I subleased an apartment in Manhattan (it is not rent controlled) I have lived there for approx 2 years. The building owner is suing my sublandlord for eviction as apparently he did not have permission to sublease(I did not realize this I thought ...

    Steven’s Answer

    Dear New York Tenant:

    Yes. An Illusory tenancy is among the defenses to plead in a verified answer to the landlord's petition.

    You should think through your argument about not knowing the sublease was without the landlord's permission, since the state statute enabling a tenant right to sublease also requires the advance written consent of the landlord. A subtenant would not ordinarily move into an apartment without having a copy of the written permission.

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  • Can a landlord commence a nonpayment lawsuit while it's not registered with HPD?

    Neither the Multiple Dwelling Law § 325 nor § 27-2107 of the New York Administrative Code shed light on this.

    Steven’s Answer

    Dear Flushing Landlord:

    If compliance means currently registered, the Housing Court allows landlords to get away with filing petitions falsely verified claiming as a matter of fact the premises are properly registered when in fact the registration expired. A tenant forces the issue by a motion to dismiss. The landlord cures the verification of a false petition by filing a new registration with HPD.

    If you mean something else by not being registered please add a comment.

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  • Can I withhold rent due to water leaking from the ceiling? Or do I take action against the neighbor?

    Our upstairs neighbors are doing something that makes it intermittently but significantly leak from our bathroom and sometimes kitchen ceilings. We have contacted the landlord and they have attempted to go up their to assess the situation, but the...

    Steven’s Answer

    Dear Brooklyn Tenant:

    Your landlord has the right to immediate access in the case of inspection for a water leak. As a courtesy the landlord may provide advance notice for the access request, but if the tenant refuses access the landlord may call police or the FDNY if the need to inspect comes from your verified complaints of water leaking from the upstairs apartment. The leak may be concealed in the drains or water lines in the walls and ceilings, so the leak may not be obvious to the neighbor in their apartment. Concealed and hidden leaks are dangerous since sodden ceilings suddenly collapse from the weight of retained water.

    You may call 311 and report a complaint of ceiling leaks in the kitchen and bathroom. That will bring an inspector to your apartment to verify. That takes time. The swifter approach is through the landlord who must know that he has a legal right to access even if the tenant refuses.

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  • Do I have to return the security deposit to my tenants?

    I have been issued an eviction and judgement against my tenants for non-payment. The judge has given them one week to move and as issued a judgement in the amount of $2300.00. Do I have to return their security deposit? Can the security deposit...

    Steven’s Answer

    Dear Marcellus Property Owner:

    Ordinarily, a landlord would need to sue the tenant for the unpaid rent after an eviction and secure a money judgment in advance of gaining the right to execute the judgment on the tenant's security deposit. But you already have the money judgment, and know for sure that you have the right to execute upon the tenant's property to collect the judgment. In addition, you have damage to repair after securing possession.

    New York State does not impose any deadline upon a landlord to return the security deposit. Often that leaves a tenant with recourse to Small Claims Court to seek to recover the security deposit. You have the right to execute on the tenant's property. You should be able to apply the left over portion of the security deposit to the $2300 money judgment.

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  • Do landlords have the right to keep the security deposit if they feel notice to vacate was not done properly?

    My lease is month to month. The lease states that I must give thirty days notice upon vacating to receive my security deposit back. I gave notice on August 14, 2015 with a September 15, 2015 vacate date. The landlord says that I have to give th...

    Steven’s Answer

    Dear Middletown Tenant:

    A landlord may not usually confiscate a security deposit to pay for rent. A New York tenant may not "end" a monthly tenancy in the middle of a month. When a lease provides for a thirty day notice that is a substitute for the state law requiring a tenant provide a one month notice to end a month to month tenancy. A month to month tenancy ends when the landlord or the tenant provides to the other at least a one month advance notice that the tenancy will end. The end date for a thirty day notice and for a one month notice is always on the last day of the month following the month when the notice is made. Often that means more than thirty days notice and more than one month notice is provided. If you waited until August 31 to provide notice that would end the tenancy on September 30. But giving the notice in August 14 does not end the tenancy on September 15. Rent comes due for the entire month of September on September 1 no matter when the tenant moves out.

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