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My lease ended several years ago and my landlord never sent a renewal, but has been accepting my rent each month. When I'm ready to move out, do I need to give 30 days notice or can I give less? Can my landlord end my lease at any time?
When a lease on a New York City rental expires but a tenant continues to occupy the apartment, and the landlord continues to accept rent, that creates a month-to-month tenancy, says Sam Himmelstein, a lawyer with the firm Himmelstein, McConnell, Gribben, Donoghue & Joseph who represents residential and commercial tenants and tenant associations.
"The tenancy is renewed for 30 more days every time the tenant pays another month's rent," Himmelstein says.
A downside of this arrangement is that it can make things a bit precarious for you. As Himmelstein explained in a previous column, landlords can raise the rent on month-to-month leases by whatever amount they choose. A tenant doesn’t have to agree to the increase, but the landlord can terminate the tenancy if they don't.
On the bright side, your landlord still has to give you notice if he or she wants you out. Under rent reform laws passed by the New York state legislature in 2019, landlords must give advance written notice to tenants, including those renting month-to-month, if they intend to terminate their leases.
If you’ve been in possession of the apartment for less than a year, you’re entitled to 30 days notice. If you’ve been living there for more than a year and less than two years, the landlord must give 60 days notice, and if you’ve been there for longer than two years, 90 days notice.
“The notice has to be served like a court paper,” Himmelstein says. “It must formally terminate the tenancy at the end of a rental period. So if you pay rent on the first of the month, the termination has to fall on the 30th or 31st of the month that’s 30, 60, or 90 days away, depending on how long you’ve lived there.”
Tenants who refuse to move out after their landlords have given them the correct legal notice are subject to a holdover proceeding—that is, a case to evict a tenant for reasons other than nonpayment of rent.
At the moment, though, housing courts are not processing new eviction cases.
“Notices of holdovers used to specify a date you had to appear in court, but now they say you’ll be notified when to appear,” Himmelstein says. “The courts are probably not going to process these cases until next year. They don’t want people coming in to court because of Covid.”
Keep in mind that if you do get sued by your landlord, even if you don’t have to appear in court right away, you could end up on the tenant blacklist—a database of people involved in a NYC housing court case.
If you’re ready to move out, on the other hand, you’re not obligated to give the same notice to your landlord, although it might be in your best interests to do so.
"There's no reciprocal obligation from the tenant unless there is something in the lease that requires it," Himmelstein says. "When a lease expires, it doesn't get renewed in terms of length, but substantive terms still project into the monthly tenancy."
This means that certain stipulations set forth in your lease still apply. If your landlord forbids pets, for instance, you can't now adopt a puppy just because the lease has expired. And if the lease included a clause requiring you to give 30 days notice before moving out, that too is still binding.
"But those clauses are usually not in leases, because landlords don't want to give you the option of terminating early during the term of the lease," Himmelstein says. This means that once your lease expires, you likely can move out whenever you want, without giving your landlord a month's notice.
"You might want to do it anyway, as a matter of courtesy if you have a good relationship with the landlord, so he or she can start planning to re-rent and hire a broker," Himmelstein says.
This would be especially useful to your landlord now, given that there may be additional challenges in finding new tenants in the midst of the coronavirus pandemic. It might also be a good idea to give your landlord a heads up if you think you might need a recommendation someday when you're applying for another apartment.
Read all the 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, 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.