Looking for the interpretation of "statute of frauds" and Its use in non written lease rental agreement for apartment in house.

Asked over 1 year ago - Staten Island, NY

I came across this for research regarding my situation that I have been living in a apartment with no lease for 10 yrs. I guess you can say its oral lease or month to month. I am confused by this term " statute of frauds" and its use regarding non written lease agreements over a year. I came across this paragraph written on a NYC rent gov site. But I can't find any other info regarding this. Is the following anything you have come across as a lawyer?
In New York City and throughout the state, unwritten leases are binding, provided they don't encompass a period that exceeds one year. When an oral lease goes beyond one year, the lease is required to be in writing to satisfy the "statute of frauds." Tenants who agree to a one-year, oral lease are considered to have a month-to-month tenancy.

Additional information

So my confusion is this paragraph above and the confusion of agreements spanning over a year saying NYC requires LL to have a 'lease' written. So what happens when there are disagreements and the period spans in my case 10 yrs? Is that paragraph a 'loophole' or is it one of many NYC laws that contradict other laws? And if it is a loophole who does it benefit the LL or the tenant? I also plan to use a laches defense. My situation is that I have an LL trying to push me out by using harassment and scare tactics of force using eviction as a common word but no action as of yet. Also saying I owe back rent when I have records from 2002 to Oct 2012. Missing oct 2008 to march 2009 records. Also I have documentation of harassment via recording. How can I protect myself from eviction or abuse?

Attorney answers (3)

  1. Steven Warren Smollens

    Contributor Level 20

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    Answered . Dear looking for definition of "statute of frauds":

    New York State imposes into any lease for residential property, whether oral or written, certain rights that cannot by agreement be voided. For example: In an oral lease, the oral lease is bound by the New York state law known as the Warranty of Habitability.

    An oral lease in New York is generally considered as a month to month lease and generally is established by performance. A tenant is a month to month tenant when without a written lease the tenant is permitted to occupy land or an apartment and in turn pays the landlord rent as each new monthly period arises. The month to month tenancy ends in New York City when the landlord serves a written termination notice on the tenant. Outside New York City the landlord or the tenant may initiate the notice that terminates the month to month tenancy. Special and unique terms and conditions are not provable in an oral lease.

    Generally, there are no oral or unwritten terms in the ordinary month to month tenancy. A month to month tenancy that arises after expiration of a written lease, is based upon the written terms and conditions of the expired written lease.

    A good example is the right to trial by jury. A tenant without a written lease, cannot orally waive the right to a trial by jury. A tenant with a written lease always signs a lease with a so-called jury waiver clause. A month to month tenant with an expired lease is bound by the jury waiver clause in the original lease, although the lease expired. Another example is the so-called no pets clause. A landlord cannot establish an oral agreement to bar pets in an oral one month (then month to month lease.) An expired lease with a prohibition against pets continues the agreement into the post written lease month to month tenancy.

    Lease agreements In New York that do not provide for a definite end date, are considered as month to month, after October first of the year the agreement is made ( New York Real Property Law section 232):

    "***Sec. 232. Duration of certain agreements in New York.

    An agreement for the occupation of real estate in the city of New York, which shall not particularly specify the duration of the occupation, shall be deemed to continue until the first day of October next after the possession commences under the agreement.***"

    In New York the statute of frauds is located at New York General Obligations Law section 5-701.

    This is a recent court decision involving New York's statute of frauds:

    http://law.justia.com/cases/new-york/other-cour...
    This is a good article about the statute of frauds:

    http://www.west.net/~smith/frauds.htm

    The answer provided to you is in the nature of general information. The general proposition being that you should... more
  2. Michael C. Wild

    Contributor Level 13

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    Answered . I'm not sure if this answers your question, but the statute of frauds is based on the concept that certain types of agreements must be put into writing in order to be enforceable.

    New York's statute of frauds can be found at Article 5, Title 7 of the General Obligations Law. Of particular relevance to your question is the provision for agreements concerning land, found at General Obligations Law section 5-703.

    This communication is intended only to provide general information. This communication does not create an attorney-... more
  3. Rixon Charles Rafter III

    Contributor Level 20

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    Lawyer agrees

    Answered . You appear to be on a month to month agreement in which case the Statute of Frauds (performance on contract not within one year) would be inapplicable.

    READ THIS BEFORE CALLING OR EMAILING ME: I am licensed to practice before the state and federal courts in Virginia.... more

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