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2 question. 1) Can a landlord legally evict a tenant for being 5 days late with the rent?

Middletown, NY |

I am a single mom of 2 & have recently fallen on hard times. And my landlord is aware of this. My rent was up to date but I'm 5 days late on this months rent and my landlord gave me a ultimatum. Pay the rent & water bill by the end ofbusiness today or vacate the house in 30 days?.
I'm currently in a month to month rental agreement. My landlord is in the process of changing the terms of our agreement by no longer including water usage in the rent efective 3/5/13 myself and other tenant needs to split the cost. My 2nd question is, if I pay a few months rent in advance before another contract is signed is the landlord binded to the terms entered into (under the current rental agreement if the advanced rent payments was accepted?

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Attorney answers 2


Dear can a landlord legally evict a tenant for being five days late?

A landlord cannot evict a tenant at all.

Evictions in New York State are carried out by an officer (a Sheriff, a local police, in New York City, a City Marshal) executing a warrant of eviction, issued by a court of competent jurisdiction, in a properly commenced summary proceeding brought by the landlord against the tenant, and only if a judge decided the lawsuit in favor of the landlord.

Tenants in New York State, even after a court entered a judgment in a nonpayment case, may still pay the rent that the court decided is due, as long as the "judgment" amount is paid before the court issues the warrant of eviction to the particular officer.

Read more about the landlord and tenant lawsuit at:

For Summary Nonpayment Proceedings:

For Summary Holdover Proceedings:

And at:

Read about your rights as a tenant in New York at:

A landlord and tenant with a month to month agreement in New York are each entitled to decide to end the relation with a one month notice. New York State Real Property Law Section 232 - b:

"***§ 232-b. Notification to terminate monthly tenancy or tenancy from month to month outside the city of New York. A monthly tenancy or tenancy from month to month of any lands or buildings located outside of the city of New York may be terminated by the landlord or the tenant upon his notifying the other at least one month before the expiration of the term of his election to terminate; provided, however, that no notification shall be necessary to terminate a tenancy for a definite term.***"

If your rent month begins on the fifth of the month, to end the relationship, with a proper one month notice, your landlord would need to serve the termination notice, not later than February 4, 2013 ( as on 2/5/13, a new month period began and would end on 3/4/2013) and that should state the end day of the term on monthly hiring is March 4, 2013. If the landlord did not serve a one month notice, then the landlord may not have a legal basis to go to court.

A termination notice must be clear and unambiguous. A landlord document that states that you must pay today, both rent and water ( an ordinary rent demand is a three day notice, and if the rent is not paid, the landlord could start a nonpayment summary proceeding), and also tells you to vacate in 30 days, is not likely a proper rent demand or a proper termination notice. But the "law" often depends on the court you are in and the approach you and your attorney want to take, factoring in to your decision, your real world needs.

Whatever papers or documents or writing the landlord gave to you, bring to an attorney. You will receive a better review of your rights from an attorney in a face to face confidential conference, than here, where all an answering attorney may do is provide you with general information.

If you pay a few months ahead the landlord must accept that payment, but you do not have a real month to month when you pay rent in advance. Moreover, if your landlord repudiates the former written agreement in favor of a new agreement, then it is not likely that paying rent in advance will do you any good.

So. Hire a lawyer. There are a lot of moving parts here.

Orange County Bar Association (Legal Aid):

Good luck.

The answer provided to you is in the nature of general information. The general proposition being that you should try to avoid a bad outcome if you can.


The landlord can not simply kick you out. The only way he can evict you is through a court proceeding. If he brings a proceeding to evict for non-payment of rent then you can end the proceeding and stay in the apartment by paying the back rent. If you are a month to month tenant the landlord is free to change the terms or end the tenancy on 30 days written notice. If he sends you a thirty day notice to end the tenancy and then collects rent after the notice he has extended the term for another 30 days. If he serves a 30 day notice to vacate and then does not accept any further rent he can commence a holdover proceeding and evict you with a court order after a trial. This takes a couple of months to complete. My advice is to pay the rent as soon as possible. If he accepts it you have a defense to any action for eviction. Remember thought that he he can raise the rent or make you responsible for utitlities by giving you a thirty day written notice which will be effective on the first day of the month following the 30 dyas notice.

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