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I want to send a letter to my tenant informing him that I am giving him 30
day notice to leave the premise. I would also like to inform him as to his
obligation to repair damages that he has inflicted on my property. I would
also like to inform him that I am deducting due rent from his security. How
do I prove that I sent him the letter and what the contents of the letter
was. To simply send him a registered with return receipt and keep a copy to
me seems not to be enough since all that it proves that he received
something from me. Could have been an empty envelope! I want something iron
clad from a legal point of view.
Thanks,
Marty
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I want to send a letter to my tenant informing him that I am giving him 30
day notice to leave the premise. I would also like to inform him as to his
obligation to repair damages that he has inflicted on my property. I would
also like to inform him that I am deducting due rent from his security.
How
do I prove that I sent him the letter and what the contents of the letter
was. To simply send him a registered with return receipt and keep a copy
to
me seems not to be enough since all that it proves that he received
something from me. Could have been an empty envelope! I want something
iron
clad from a legal point of view.
Normally landlords send the notices by either regular mail or certified
mail, return receipt requested. The testimony of the landlord that it was
sent is evidence. That testimony is respected because the landlord doesn't
have an incentive to fail to notify the tenant. On the contrary, the
landlord has every incentive to send the letter. That's because most of the
time, tenants move out after receiving the notice. If the tenant testifies
that the notice was not received, but cannot raise any reason that the
landlord would benefit from not sending the notice, the landlord's testimony
will be believed. And that evidence of mailing results in a presumption
that the letter was received.
The next level of quality of the evidence would be to have the notice sent
by someone else. An independent witness regarding the mailing and the
content would be as close to conclusive as you'll ever get. Even if the
witness is not independent, like your attorney for example, the testimony of
the witness would be respected. A witness could be arranged for by hiring a
secretarial service to type up the letter, mail it, keep a copy, keep the
return receipt, prepare a proof of mailing form, and testify if necessary.
If you expect the tenant to fight the eviction, you should let an attorney
handle it from the beginning, including the 30 day notice. The cost won't
be much.
McGyver
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I guess I will go to attorney. I don't know what is so complicated. It is my
house, he has no lease, I want him out in a reasonable time. I should have
to fill out a form, sent one to him, another to some govt agency. Wait the
required time and if he still is not out inform the govt agency and let them
take it from there. No wonder there are a million lawyers around, the system
is set up so complicated.
Marty
If you expect the tenant to fight the eviction, you should let an attorney
handle it from the beginning, including the 30 day notice. The cost won't
be much.
McGyver
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On Thu, 23 Oct 2003, "Martin Burger" <martin.burger@pobox.com> wrote:
I guess I will go to attorney. I don't know what is so
complicated. It is my house, he has no lease, I want
him out in a reasonable time. I should have to fill out
a form, sent one to him, another to some govt agency.
Wait the required time and if he still is not out inform
the govt agency and let them take it from there. No
wonder there are a million lawyers around, the system
is set up so complicated. Marty
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1) The house was my mothers, she deeded it over to me and my brother with a
"life estate" to her. So it "belongs" to me and my brother, but she is
(legally) the landlord for the purpose of leasing it out and keeping any
profits - at least that is what I thought the lawyer who drew this
arrangement @$300 per hour told me. So in a sense there are three owners
here.
2) I have no idea what the legal status of the house is. It was purchased
new some 40 years ago as a 3 family house (3 apartment with full basement
and 3 full eat in kitchens 3br/2br/3br). We are paying taxes as a 3 family
house. A search on the building department's on-line web site has it listed
as a C0 3 family walk up apartment unit. I went to the building department
in downtown Brooklyn and they do not have any building plans of our house
nor any record of the "certificate of occupancy"
3) There is a concept of rent-control on a private house? That is a new one
to me. How does a private house , which was initially occupied by us, my
grandmother, and my uncle, morph to rent-control apartment complex? This
tenant never had a lease so what "rent control" are we talking about? Is it
wrong to raise a 3 bedroom apartment for $825 to $900 after 5 years
excessive?
4) I guess what I am asking is do I have to give a reason to evict a
non-lease holding tenant or is it enough for me to say "after 30 days you
are to vacate premise" and that is it.
5) I delayed it until now because I have, what I think are valid reasons (a)
he is not paying the required rent - the other two tenants were raised and
they are paying the new rent (2) He destroyed my garden - unacceptable (I
believe) whether one has a lease or not. This all happened within the last
month.
I figure worst comes to worst the judge can say that he must stay and pay
the rent. The fighting will continue, the police will continue to be called
until something real serious happens. The last episode one of the tenants
struck the wife of another of the tenants. They plan on going to court. What
sane housing court judge would allow this to continue? The only complaint
that the tenants have against us is why don't we throw the other tenant out!
We give them all the heat they need, do all required repairs, charge them
rock-bottom rent. Maybe that is the reason they are so reluctant to leave. I
know for a fact that I am seriously undercharging the tenants - It would
cost them hundreds more to move, and who would give them full basement
rights with washer & dryer and indoor parking privileges?
On Thu, 23 Oct 2003, "Martin Burger" <martin.burger@pobox.com> wrote:
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On Fri, 24 Oct 2003, "Martin Burger" <martin.burger@pobox.com> wrote:
[Is t]here is a concept of rent-control
on a private [three-family multiple dwelling
in New York City]?
This will depend on a variety of factors, including how long the
tenant in question has resided in the apartment in question and
whether the premises are/aren't a "legal" such dwelling.
* * * This tenant never had a lease so what
"rent control" are we talking about? Is it
wrong to raise a 3 bedroom apartment for
$825 to $900 after 5 years excessive?
You mean "never had a written lease" as, meanwhile, he does have "a
lease" -- namely (you said), an oral month-to-month lease.
A landlord does not have a right just unilaterally to raise previously
agreed rent, although (obviously) a landlord of a not rent-controlled
tenant may ask and try to negotiate for a higher rent than previously
agreed.
In N.Y., the remedy of a landlord whose tenant declines to pay higher
rent than that mutually established previously is not to sue the
tenant for the higher sum demanded and, instead, is to obtain the
tenant's removal from the premises.
In N.Y. City, a residential tenant who first took occupancy five years
ago would not be subject to the city's/state's rent control laws; and,
if the landlord is to be successful in a "holdover" eviction
proceeding, the petition in that lawsuit must clearly so allege and
the landlord must so prove.
[D]o I have to give a reason to evict a
non-lease holding tenant or is it enough
for me to say "after 30 days you are
to vacate premise" and that is it.
Of course, you can ask the tenant to move and, if he thereupon does
so, you will have obtained the answer to your question.
Presuming that the tenant will not voluntarily vacate merely upon your
asking, then, as others have told you, correctly, the tenancy in N.Y.
of a not rent-controlled residential tenant in occupancy pursuant to
an oral month-to-month lesse may be terminated by the proper service
upon the tenant of a written "thirty-day" notice unequviocally
terminating the landlord-tenant relationship upon the expiration of
the therein-stated period promptly followed, upon the expiration of
that period, by the commencement, also by proper/law-prescribed
service or process, of a "holdover" summary eviction proceeding
pursuant to N.Y. RPAPL Art. 7.
The sole required grounds for removal in such a case are those
summarized immediately above, i.e., that the tenant is "holding over"
in possession despite the termination by the service of the
law-required written notice of his oral month-to-month not
rent-controlled tenancy (if, as also previously noted, the landlord
has not reinstated and created a new tenancy by having accepted rent
from the tenant between the notice-stated termination date and the
commencement of that proceeding).
Interjecting into the proceeding discussion of what rent is/isn't
"fair" or "excessive" in a manner that invites (or just allows) a
judge to "find" (decide/rule) that the landlord's primary motive is to
continue the landlord-tenant relationship can in some cases undermine
the law-required uneqivocal nature of the written notice of
termination, yet an effective such notice is the sine qua non for the
eviction proceeding.
All this Stuff ought, and can, be not "complicated" . . . IF the
landlord is careful to comply with the requirements of N.Y. RPAPL Art.
7 and the corresponding N.Y.C. housing court rules. It is just that,
you having been told this several times before, months ago, and yet
your continuing to pose the questions you do in the form that you do
suggests that you are not likely to be among those who will be able to
achieve these ends successfully on your own.
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I guess I will go to attorney. I don't know what is so complicated. It is
my
house, he has no lease, I want him out in a reasonable time. I should have
to fill out a form, sent one to him, another to some govt agency. Wait the
required time and if he still is not out inform the govt agency and let
them
take it from there. No wonder there are a million lawyers around, the
system
is set up so complicated.
Complicated things can be made simple if you (a) leave out any opportunity
for the tenant to tell his side or to dispute your statements, (b) leave out
any opportunity for the "government agency" to conduct a hearing to decide
who is right, and (c) lump everything else into "let them take it from
there".
McGyver
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Many thanks! You made it clear to me what to do. I always thought that you
had to have a reason to evict a tenant - even if there is no lease. I will
keep the other reasons to myself unless it gets brought up in court. I will
simply give him the 30 day notice and take it from there. I will have an
attorney draft and send it. I will in fact begin by telling the attorney
that he has no lease and I want him out without going into details, as you
suggested, about the other side issues. This way the mindset of the attorney
will also be that this is simply a termination of a tenant/landlord
relationship.
Marty
On Fri, 24 Oct 2003, "Martin Burger" <martin.burger@pobox.com> wrote:
This will depend on a variety of factors, including how long the
tenant in question has resided in the apartment in question and
whether the premises are/aren't a "legal" such dwelling.
You mean "never had a written lease" as, meanwhile, he does have "a
lease" -- namely (you said), an oral month-to-month lease.
A landlord does not have a right just unilaterally to raise previously
agreed rent, although (obviously) a landlord of a not rent-controlled
tenant may ask and try to negotiate for a higher rent than previously
agreed.
In N.Y., the remedy of a landlord whose tenant declines to pay higher
rent than that mutually established previously is not to sue the
tenant for the higher sum demanded and, instead, is to obtain the
tenant's removal from the premises.
In N.Y. City, a residential tenant who first took occupancy five years
ago would not be subject to the city's/state's rent control laws; and,
if the landlord is to be successful in a "holdover" eviction
proceeding, the petition in that lawsuit must clearly so allege and
the landlord must so prove.
Of course, you can ask the tenant to move and, if he thereupon does
so, you will have obtained the answer to your question.
Presuming that the tenant will not voluntarily vacate merely upon your
asking, then, as others have told you, correctly, the tenancy in N.Y.
of a not rent-controlled residential tenant in occupancy pursuant to
an oral month-to-month lesse may be terminated by the proper service
upon the tenant of a written "thirty-day" notice unequviocally
terminating the landlord-tenant relationship upon the expiration of
the therein-stated period promptly followed, upon the expiration of
that period, by the commencement, also by proper/law-prescribed
service or process, of a "holdover" summary eviction proceeding
pursuant to N.Y. RPAPL Art. 7.
The sole required grounds for removal in such a case are those
summarized immediately above, i.e., that the tenant is "holding over"
in possession despite the termination by the service of the
law-required written notice of his oral month-to-month not
rent-controlled tenancy (if, as also previously noted, the landlord
has not reinstated and created a new tenancy by having accepted rent
from the tenant between the notice-stated termination date and the
commencement of that proceeding).
Interjecting into the proceeding discussion of what rent is/isn't
"fair" or "excessive" in a manner that invites (or just allows) a
judge to "find" (decide/rule) that the landlord's primary motive is to
continue the landlord-tenant relationship can in some cases undermine
the law-required uneqivocal nature of the written notice of
termination, yet an effective such notice is the sine qua non for the
eviction proceeding.
All this Stuff ought, and can, be not "complicated" . . . IF the
landlord is careful to comply with the requirements of N.Y. RPAPL Art.
7 and the corresponding N.Y.C. housing court rules. It is just that,
you having been told this several times before, months ago, and yet
your continuing to pose the questions you do in the form that you do
suggests that you are not likely to be among those who will be able to
achieve these ends successfully on your own.
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