Q. My next apartment won't be ready for a couple of weeks after my lease ends. What happens if I don't move out on exactly on the date I'm supposed to? Can the landlord change the locks? Throw out my stuff? Keep my deposit?
A. In the event that a tenant remains in possession of a property after the lease terminates, they become a "holdover" tenant. At this point, the tenant has breached their lease and the landlord has a number of legal remedies, but in order to take advantage of those remedies, a specific set of procedures must be followed.
Holdover cases can be much more complicated than non-payment of rent cases, but in the situation your described the landlord is likely to take the following steps.
First, they will send you a Notice to Quit which will state that you must be out of the apartment by a certain date or they will file a lawsuit. The landlord will follow that by serving you with a Holdover Petition and Notice of Petition which will enable the landlord to force you to participate in a Housing Court proceeding. It’s important to note that the landlord must follow specific procedures in the way that they deliver these notices to you.
In New York, landlords cannot resort to what the law calls “self-help.” Thus, they are not permitted to change the locks or remove your personal property from the premises without a court order and the assistance of the Marshal’s office.
However, your deposit may be at risk as the landlord will have damages that arise out of your breach of contract. Your lease, as well as the court, would determine what the landlord’s actual damages are. If they exceed your security deposit (and they likely will if the landlord needs to file a court case to evict you), you will not only lose your deposit but the landlord can win a judgment against you for the amount of damages that exceed the amount of the security deposit.
It’s also important to note that there can be future repercussions for tenants that holdover even if they leave before a court case can fully play out. First, future landlords may require a recommendation letter from your prior landlord and you will not be able to obtain one. In addition, if the landlord actually files a Notice of Petition, there will be a record of your case, with you as the defendant, in the Housing Court system. Many landlords refuse to rent to prospective tenants who have a history in Housing Court.
If you know that you need to stay past your lease termination date, the best thing to do is to come to an amicable agreement with your landlord in advance. Most times they will agree to let you do so and all parties can discuss the terms on which it will happen. If the landlord refuses to let you stay, you should look for a short-term rental option such as a sublet or vacation rental.
You can even hire a moving company to move you out of your first apartment, store your possessions for a reasonable fee, and then deliver them to your next permanent residence once you are ready.
Mike Akerly is a New York City real estate attorney, landlord, and real estate broker. He is also the publisher of the Greenwich Village blog VillageConfidential.
Note: The information provided here is for informational purposes only. It should not be construed as legal advice and cannot substitute for the advice of a licensed professional applying their specialized knowledge to the particular circumstances of your case.
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