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What's it all about on written notices for hikes.

Since the early part of 1991 Landlords in New York County have been burdened (both economically and otherwise) with having to make written rent demands upon their tenants as a prerequisite to their commencement of Summary Non-Payment proceedings in order to avoid dismissal of those proceedings for lack of subject matter jurisdiction.

The necessary deviation from the Real Property Actions and Proceedings Law Section 711(2) was caused by a lower court decision in the Civil Court, New York County, which dismissed a landlord's case because the landlord had not made such a written rent demand but rather had made an oral demand for the rent. In dismissing the case the lower court found that Paragraph 27 (the standard boiler plate Bills and Notices provision) superseded the Statute which provided the landlord with an alternative between an oral or written rent demand, and thus the Landlord was required to make a written demand. Since the Landlord had made an oral demand and had not served a written demand the Landlord's Petition was dismissed after it had presented its direct case.

The Appellate Term, First Department has recently overruled the lower court, reinstated the Petition and ordered a new trial in the case of Four Star Holding Co. v. Alex Furs, Inc., in a Per Curiam decision.

The Appellate Term in its decision construed Paragraph 27 as applicable principally to notices or statements given pursuant to or under the lease itself, as opposed to statutory notices and declined to hold that this printed provision in the standard from lease manifests the parties' agreement that they adopted a notice requirement different from the otherwise controlling statutory procedure.

The Appellate Term further noted that under paragraph 17 (also a standard boiler plate provision) no written notice of default need be served where there has been a default in the payment of rent. Thus, paragraph 27 should not be construed as supplying the written notice requirement for a tenant's default in paying rent, when that type of default was specifically exempted from the written notice requirements of paragraph 17.

The Landlord in Four Star Holding Co. v. Alex Furs, Inc. was represented by M. Teresa Daley, of Daley & Pollack, a firm predominantly limiting itself to landlord/owner representation.

Daley strongly suggests that landlords and their attorneys should review their leases and unless they find a provision which specifically requires the landlord to provide a written demand for the rent prior to the commencement of a summary proceeding that they can now return to making oral demands for the rent without jeopardizing the dismissal of their petitions.

Daley further suggests, though, that each lease be reviewed thoroughly and that an attorney should be consulted in doing so, but that if the lease only contains the standard boiler plate provision paragraph 27 referring to Bills and Notices, to wit: "Except as otherwise in this lease provided, a bill, statement, notice or communication which owner may desire or be required to give to Tenant, shall be deemed sufficiently given or tendered if, in writing, delivered to Tenant personally or sent by registered or certified mail addressed to Tenant at the building of which the demised premises form a part or at the last known residence address or business address of Tenant or left at any of the aforesaid premises addressed to Tenant. . ." landlords may comfortably dispense with the written three day demands, unless they are unable to make an oral demand for the rent.

This decision definitely answers for Landlords the question of whether or not to make a written demand for the rent, and provides landlords, with the ability to get into Court quicker than before when they were relegated to making written demands which must be served in the same manner as a Notice of Petition and Petition. The decision certainly is a victory for landlords in reducing the time it generally takes to either recover rent or possession of their premises.
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Title Annotation:New York County laws regarding written notices for rent demands
Publication:Real Estate Weekly
Date:Aug 26, 1992
Previous Article:Report tracks commercial space for period ending August 1.
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