New York’s Housing and Stability Tenant Protection Act (HSTPA) effective June 14, 2019 contained changes in law that may have been overlooked or not given sufficient attention by landlords, tenants, and real estate practitioners. It is some of those issues that are addressed in this article.
One applies to evictions for non-payment of rent and holdover proceedings against the tenant; situations where the tenant remains in occupancy beyond the termination of the lease without the landlord’s consent.
With both nonpayment and holdover proceedings, the HSTPA gives courts statewide discretion to grant an occupant a stay, (non-removal from the rental unit), of up to one year. Factors courts may consider when granting a stay, or deciding the length of a stay are whether the eviction would cause any of the following: extreme hardship if a stay was not granted; serious ill health; significant exacerbation of ongoing condition; a child’s enrollment in a local school; any other extenuating life circumstances that would affect the quality of life,
Another issue addressed in the HSTPA that warrants consideration pertains to the landlord’s obligation to mitigate damages. Prior to 1995, courts in the Bronx and Manhattan did not require the landlord to make a good-faith effort to re-rent the apartment if a tenant vacated before the expiration of the lease in order to be entitled to the rent that would have been due had the tenant remained in occupancy. This is known as the landlord’s obligation to mitigate damages. The courts in other areas, including Brooklyn, Queens, Staten Island, Nassau and Suffolk Counties did require the landlord to mitigate damages in order to be entitled to collect the rent from the vacating tenant.
In 1995, in Holly Properties v. Kenneth Cole, New York’s highest court, the Court of Appeals, consistent with the practice in Manhattan and the Bronx, ruled that a landlord had no obligation to mitigate damages. The state legislature addressed this issue in the HSTPA and landlords in the State of New York are now required to make a good-faith effort to re-rent the apartment or forfeit the rent due from the vacating tenant everywhere in the State of New York..
An often overlooked section of New York Real Property Law, (RPL section 235-f), that has been in effect since 1983 is commonly known as the “Roommate Law.” The law provides that a landlord may not restrict occupancy to the tenants named on the lease. The landlord must permit each tenant and the tenant’s immediate family to occupy the apartment, and each tenant may have one person occupying the apartment not named on the lease and the occupant’s dependent children. The tenant who wishes to have an occupant is required to notify the landlord within thirty days following the roommate taking occupancy.. The landlord may not refuse the occupancy, and the tenant may not bargain away the right. To do so is considered against public policy. The number of occupants is limited by laws of the jurisdiction where the property is located. Courts have applied the Roommate Law to cooperative and condominium housing. i.e. Sherwood Village Cooperative A. v. Joshua J. Slovik
Another issue is that of subletting an apartment. In New York, in a rental property of less than four units, a landlord may prohibit subletting. If the property is four or more units, the landlord may not unreasonably deny subletting.
Assignment of the lease to a third party without the landlord’s consent is prohibited. If the property is four or more units and the landlord unreasonably denies assignment, the lease may be terminated by a court.
Contrary to popular belief, in New York, unless the lease states otherwise, the rent is due in arrears, at the end of the month. Rent due on the first of the month is not automatic. The lease must state it.
Readers should consult an attorney licensed to practice law in New York with any questions regarding the issues discussed in this article.