Ask Sam: My landlord waits to cash my rent checks, putting me at risk of eviction. What should I do?
My landlord has a system of dropping off self-addressed envelopes each month for tenants to send their rent checks in. However, for the past several months, 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. In addition, the landlord hasn't renewed my lease since it expired two years ago. Since she isn't collecting checks, can I get away with not paying some portion of my rent?
You'll definitely want to keep paying your rent on time and in full, says Sam
"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 best 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 says. "This will confirm that you have tendered your rent each and every month and the landlord has not cashed the checks."
But your landlord might also delay cashing your check for other reasons. The onset of the Covid-19 pandemic, for instance, could be causing communication issues among building management.
“Because offices are functioning remotely, they may not be functioning as well,” Himmelstein says. “Your landlord’s response time might be slower, and one department might not know what the other department is doing.”
Still, this is bothersome for the tenant, and your best bet is to get everything in writing and keep a record of all the checks you send in. And definitely don’t spend your rent money or assume you’re off the hook for your monthly payments.
There are also circumstances under which landlords can refuse—or are legally required to refuse—rent payments.
“If a landlord is getting ready to start a holdover proceeding to terminate your tenancy, they can’t accept rent for the period beyond when the termination notice ends,” Himmelstein says. “Accepting your rent would mean potentially reinstating your tenancy.” However, once the case appears on the court calendar, the court will likely require you to resume your payment and pay any rent that the landlord had rejected.
Landlords might also decline rent payments if someone other than the tenant named on the lease is paying. If a roommate attempts to pay the rent when a tenant moves out, or a family member or friend stays behind or moves in and pays the rent in their place, landlords may be reluctant to accept rent from them.
“They don’t want to establish a landlord-tenant relationship with them until they can screen that person,” Himmelstein says. “That could also create an issue with succession rights if it’s a stabilized apartment, so it’s arguably legitimate for the landlord to decline the rent.”
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," Himmelstein says. "If the landlord doesn't renew the lease within 30 days, file a complaint with 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.
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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, 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.