LANDLORD’S MONTH TO MONTH EVICTION CASE NOT DISMISSED
Retention of Rent Check After Expiration of Thirty Day Eviction Notice OK
A Nassau County Housing Court judge has rejected the findings of several higher courts and held that retention of a rent check from Section 8 after expiration of the notice to terminate tenancy but before service of the holdover petition (the window period) does not vitiate the notice and is not grounds for dismissal. Generally, courts have held that acceptance of rent during the window period is fatal to the proceeding because it causes the intentions of the landlord to be equivocal. That is true even if the rent check is not cashed or if payment is part of a larger payment by Section 8 for more than one tenant.
In 385 Bayview LLC v. Warren, the judge held that unless the landlord has given the tenant reason to think that acceptance of rent during that window period indicates that the landlord no longer wants possession of the premises, there is no equivocation and the notice is effective. The decision indicates that the notice to terminate this month to month tenancy expired on June 30, 2015 and that the landlord received a subsidy payment from Section 8 on July 1, 2015. According to the case, the petition was served on July 14, 2015, making the window period July 1, 2015 through July 14, 2015. Based on decisions by higher New York courts, that would usually be enough for dismissal.
This time, the judge reasoned that there could not possibly any equivocation of the landlord’s intentions since the tenant was not even aware of whether the subsidy payment was accepted or returned. He further stated, “… we do not agree that a landlord must return an unsolicited payment, and thereby allow the tenant to occupy the apartment at no cost, in order to retain its right to proceed on a timely served nonrenewal notice.”
All in agreement say aye!