Ask Sam: I saw my apartment on a listing site, but I haven’t received any notice from my landlord. Is that legal?
If your landlord has listed your apartment without giving you the correct advance notice, he can’t rent it out to a new tenant, even if he finds one.
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I spotted a listing for my rental on an apartment web site, but I didn't get any notice from my landlord that he isn’t renewing my lease. I want to stay in the apartment. Is there anything I can do?
Your landlord is legally required to give you a certain amount of notice about whether or not he’s renewing your lease, based on how long you’ve lived in the apartment, says Sam Himmelstein, a lawyer at Himmelstein, McConnell, Gribben & Joseph who represents residential and commercial tenants and tenant associations.
And if he’s listed your apartment without giving you the proper notice, he can’t rent it out to a new tenant, even if he finds one.
Prior to 2019, landlords were not required to give tenants advance notice if they didn’t intend to renew their leases.
“If your lease expired, the next day the landlord could file a holdover proceeding to evict you,” Himmelstein says. “And if you paid rent after the lease expired, you’d become a month-to-month tenant, entitled to a 30-day termination notice before a holdover could be commenced.”
But since the passage of the Housing Stability and Tenant Protection Act (HSTPA), landlords now must let tenants know ahead of time what their plans are. For tenants who have lived in their apartments for less than a year, the required notice is 30 days; for one to two years, 60 days; and for two or more years, 90 days.
Note that this only applies to market-rate tenants; rent-stabilized tenants are guaranteed the option to renew (unless they cease occupying their apartment as their primary residence).
“Depending on how long you’ve been in occupancy of the apartment, if you haven’t received notice that the landlord isn’t renewing your lease within the legal timeframe, they cannot throw you out,” Himmelstein says.
And if the landlord has already rented out your apartment to a new tenant, he’s out of luck: you have the right to stay put until given the notice required.
But before you start thinking about taking legal action, consider calling your landlord, or the broker named on the apartment listing. And if you’re reluctant to get on the landlord’s radar yourself, you could have a friend do a little reconnaissance instead.
“Have them call and say they’re interested in the apartment,” Himmelstein suggests. “They could ask if the apartment is occupied and whether they can view it.”
It’s possible that the listing is just an error—sometimes brokers copy and paste information about an apartment from an older ad, and it may be that they’ve simply listed the wrong unit.
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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.
