The Market

Lease isn't being renewed? You are supposed to get advance notice. Here's what else you need to know

By Emily Myers | February 2, 2022 - 9:30AM 

If you don't receive sufficient notice, you can stay in the apartment and become a month-to-month tenant, but you should expect to eventually receive another notice that your tenancy is being terminated.

Emily Myers for Brick Underground

As you approach the end of your lease, if your landlord has decided not to renew your lease, they are supposed to give you advance notice—exactly how far in advance depends on how long you have been there. But what happens if they don't follow the rules? What are your options?

In a rent-stabilized apartment, you are entitled to automatic renewal but in a market-rate apartment you don't get this protection. And the same rules for notification also apply to rent increases of five percent or more for market-rate apartments.

Many landlords will have a system in place to notify tenants about renewals (and rent increases) but it's possible some may not be familiar with the rules. This renders the notice defective, so as a tenant, you have some choices to make depending on what you want. You can stay on in the apartment and become a month-to-month tenant but should expect to receive another notice ending the tenancy.

Determining the correct notice periods

The notice period for non-renewal (or rent increases of five percent or more) increase the longer you've been living in the apartment

If the landlord wants to take back the apartment, you’re entitled to at least 30-days notice. If you’ve been living in the apartment for more than a year and less than two years, your landlord must give you 60-days notice, and if you’ve been there for longer than two years, they must give 90-days notice. 

Communicating with your landlord

Depending on what you want the outcome to be, a good starting point is to reach out to your landlord. Check your lease for details about the best way to communicate with them.

"There's a notice clause in the lease that would tell you—probably you need to send a letter by certified mail—but you can also call or email and try to speak to someone and work it out," says Justin Brasch, founding attorney at Brasch Legal. 

What to say? Tell them you believe or know the notice of non-renewal to be defective, explain what you would like to see happen, and ask how you might come to a mutually agreeable arrangement.

Choosing to stay on at the apartment

If the notice doesn't meet the legal requirements, you can stay. Your lease will still expire but without the correct notice, you cannot be removed from the apartment.

"The landlord needs to start all over," Brasch says, meaning they'll need to issue you with a notice that meets the rules. Depending on how long you've been in the apartment you could get to stay a few more months. Your lease will probably expire during that time, making you a month-to-month tenant.

Catherine Grad, an attorney with Himmelstein McConnell Gribben & Joseph (a Brick Underground sponsor) points out that failure to serve the notice correctly is the basis for getting a holdover proceeding (a kind of an eviction case) dismissed. 

However, choosing to stay at the apartment raises the issue of what you pay. If an incorrect notice is given and the lease has expired, a tenant would be required to pay for what's called "use and occupancy," Brasch says. This is the fair market value of rent and it’s usually very close to the actual rent you've been paying.

Depending on the level of confrontation you want with your landlord you could potentially not pay this. However, taking this route means you'll find yourself in housing court and a judge will determine what you owe. This could affect your credit score, Brasch warns. 

"The landlord could send details to a credit agency that you are not paying your rent. If you were to pay your prior rent—even though technically you need to pay the fair market value—it would be unlikely that a landlord would report that," he says. 

Moving to a month-to-month tenancy

You may decide to stay and keep paying the rent outlined in your lease. Once the lease expires, you become a month-to-month tenant and, as such, are you still entitled to the same notices based on the length of your tenancy. 

However, if the landlord is committed to removing you from the apartment, you should expect to receive notice they want to terminate your tenancy. "They will eventually sue to evict you," Brasch warns. But keep in mind, they cannot turn off your water or change your locks—your eviction must happen through the correct legal channels. 

 

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