Ask Sam: Can my landlord collect rent while he’s trying to evict me?
I'm a rent-stabilized tenant and my landlord is trying to evict me. He still accepts a rent payment every month without sending a new lease. Will that be held against him in court? Do judges allow landlords to cash rent checks during an ongoing eviction case?
Landlords can continue to collect rent even as they’re trying to evict their tenants, says Sam Himmelstein, a lawyer at Himmelstein, McConnell, Gribben & Joseph who represents residential and commercial tenants and tenant associations.
“As a rule, once the case is in court, the landlord can accept rent ‘without prejudice,'” Himmelstein says. “That means the acceptance of rent doesn’t confer or take away anyone's rights. It’s being done to maintain the status quo.”
The rules around this were loosened somewhat, though, by the passage of the Housing Stability and Tenant Protection Act (HSTPA) of 2019. Paying rent during an ongoing court case used to be mandatory; now courts must order tenants to pay while a case is underway, provided certain conditions are met, but they almost always do so.
And paying your rent every month won’t reinstate your lease once you’re in court for an eviction case.
“If the landlord sent the tenant a notice of non-renewal and the landlord accepted rent between the expiration date in the notice but before the court case started, the tenant would have an argument that the landlord reinstated their tenancy,” Himmelstein says. “But once it’s in court, you can’t argue that acceptance of rent payments makes the case go away.”
As for whether your landlord is in the wrong for not issuing you a new lease, it depends on what grounds he is trying to evict you.
The landlord would not be required to renew your lease if he sent you a notice that he is terminating the lease for owner use—that is, he intends to take your apartment for himself or a close relative—or because he plans to demolish the building and put up a new one. He would also decline to renew your lease if he’s evicting you on the grounds of non-primary residence—that is, that you live for a majority of the year somewhere other than the unit, which would violate the law for rent stabilized tenants.
Under the other grounds for eviction of rent-stabilized tenants—including a breach of the lease like illegal subletting or creating a nuisance—he would still be required to renew your lease while the court case is ongoing. Renewing the lease under these circumstances would have no bearing on the eviction case.
“The tenant can’t use that as an argument, because the landlord would be complying with their legal obligations,” Himmelstein says.
On the other hand, if you think the landlord should have renewed your lease when they have failed to do so, you could file a complaint with the Department of Homes and Community Renewal.
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Read all our Ask a Renters Rights Lawyer columns here.
Sam Himmelstein, Esq. represents NYC tenants and tenant associations in disputes over evictions, rent increases, rental conversions, rent stabilization law, lease buyouts, and many other issues. He is a partner at Himmelstein, McConnell, Gribben & Joseph in Manhattan. To submit a question for this column, click here. To ask about a legal consultation, email Sam or call (212) 349-3000.
