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Ask Sam: My landlord isn't cashing my checks and hasn't renewed my lease. Can I get away with not paying rent?

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Question:

My landlord has a system of dropping off self-addressed envelopes to my apartment each month for me to send my rent check in. For the past several months, however, she hasn't been doing this. Some of my neighbors have been sending their rent checks anyway, but she often doesn't cash them until right before they're about to become void. Furthermore, the landlord hasn't renewed my lease since it expired in 2015. Since she also isn't collecting checks, can I get away with not paying some portion of my rent?

Answer:

You'll definitely want to keep paying your rent on time and in full, says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations

"Landlords who don't cash rent checks are using one of the oldest harassment techniques in the book," Himmelstein says. "They will do this in the hope that the tenant will spend the rent money, and then they can sue them for eviction." 

Should you end up in housing court for nonpayment, it's unlikely that a landlord who delays cashing your checks will be considered a legit reason for you to withhold rent, he adds. Instead, a judge might issue a "money judgment," which means your landlord can take whatever assets you have in order to get the rent you owe, and a "possessory judgment," which allows the landlord to evict you if you don't pay that amount decided by the court, according to the Met Council on Housing.

If the court determines that some of the rent you owe is "stale,"--that is, your landlord intentionally delayed suing you for rent--you'll be spared eviction for that portion. In other words, Himmelstein explains, "If the landlord sued for 12 months of rent and six months is considered 'possessory,' the tenant won't get evicted for not paying back the stale rent on the remaining six months." 

But it's better not to let your current situation reach such a point. Protect yourself from the stress of fighting it out with your landlord in housing court by sending in your rent checks and keeping a written record of your payments. "Write a letter and send it to your landlord by regular and certified mail, and get a certificate of mailing from the post office, because then it's presumed to be delivered," Himmelstein advises. "This will confirm that you have tendered your rent each and every month and the landlord has not cashed the checks." 

As for the question of lease renewal, how you should proceed depends on whether or not you're a stabilized tenant. If you are, as long as your landlord hasn't served you with a notice for non-renewal, then you're legally entitled to a renewed lease. 

"If they want to renew, you should first write a letter to the landlord," says Himmelstein. "If the landlord doesn't renew the lease within 30 days, file a complaint with DHCR (the Division of Housing and Community Renewal) for non renewal." 

Market-rate tenants have significantly less recourse.

"In that case, it's totally up to the landlord whether they want to renew, and rocking the boat could make things worse," Himmelstein points out. In other words, keep in mind that at any time, your landlord can serve you a 30-day notice to move out. Just one more reason to keep paying your rent. 

Related:

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Ask Sam: I've been renting for 19 years with no lease, and the landlord wants to evict me. What are my rights? (sponsored)

Ask Sam: How do I protect myself from a landlord's illegal eviction attempts? (sponsored)

Ask Sam: How do I find out if my apartment should be rent-stabilized—and if the landlord owes me money? (sponsored)

Ask Sam: What kind of problems qualify me for a rent abatement? (sponsored)


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, Donoghue & 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.

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