SENIOR SACRIFICES SECURITY (DEPOSIT)
Poor Phyllis Plotkin lost her security deposit when she failed to give her landlord adequate notice of her election to relocate to senior housing. According to New York State law, (Real Property Law section 227-a), a tenant who is 62 years of age or older and is seeking to relocate to an adult care facility, a health care facility, senior citizen or subsidized low-income housing, or, a family member's residence, may prematurely terminate a lease, without additional liability to the landlord, if a 30-day notice is given to the owner.
In Plotkin v. Fairfield at Setauket, LLC, Ms. Plotkin advised her landlord on June 11, 2003, that she would be relocating as of June 30, 2003. Although the landlord was only given 19 days' notice, a Suffolk County District Court Judge awarded Ms. Plotkin a refund of her security deposit.
An appeal to the Appellate Term, 9th and 10th Judicial Districts, followed. Since Ms. Plotkin failed to conform with the technical requirements of the law, the appellate court concluded that the senior was liable for another month's rent and reversed the District Court's judgment. As the Appellate Term noted in its decision:
Plaintiff, who was moving to senior citizen housing, provided notice to landlord of intent to surrender her lease, as required by Real Property Law section 227-a(2), on or about June 11, 2003 and moved out of her apartment on or about June 30, 2003. Since, under the statute, such notice is effective no earlier than 30 days after the due date of the next rental payment subsequent to the date of delivery of the notice, tenant's notice of slightly more than two weeks was inadequate as a matter of law...Because tenant admittedly did not pay the July 2003 rent, and the terms of the lease permitted use of the security deposit in lieu of rent in such circumstances, landlord was entitled to retain the deposit for that purpose....We found it interesting that a party was willing to incur the time and expense of prosecuting an appeal, when the legal fees and costs probably exceeded the amount of the funds held as security. (After all, how much could the senior's monthly rent have been?)
Is there no rest for the weary?
For a copy of the Appellate Term's decision in Plotkin v. Fairfield at Setauket, LLC, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_51052.htm
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Comments
I was a tenant in Westchester County with a rent stabilized lease. The landlord never registered the lease with DHCR. I did not renew lease when it was up for renewal in May, 2006. I continued to pay rent which was over $2000. My wife and I earned a combined salary of over $175,000. I sent an EMAIL to my landlord on July 22, 2006 informing him we would be vacating on 9/1/06 and told the superintendant the same on or about 7/22. We vacated. The super put up pads on the elevator. My landlord is seeking three months rent for 9/06-11/06. He has indicated that if I can show him EMAIL notice is legal notice from a tenant to terminate a month to month tenancy he may forego collection. Based on your blog, I didn't even need to give him notice under RPL 232-b. Is that correct?
Posted by: jonathan birenbaum | January 26, 2007 10:28 AM
Jonathan:
Thank you for your interest in our blog.
Unfortunately, under existing ethical guidelines, we are not permitted to dispense legal advice. As we have noted in our website's "Legal Disclaimer & Terms of Use," this blog is designed to provide "generalized information and commentary which is NOT intended to serve as legal or other professional advice."
This forum is unsuitable for dispensing particularized counsel since it is inherently "open" in nature and thus not conducive to preserving client confidences or the attorney-client privilege. Without the names of all interested parties, we are unable to perform a conflict check. And, denied an independent review of all pertinent documents, we are unable to arrive at an objective assessment of the underlying facts and circumstances.
With those disclaimers noted, we would like to clarify that this blog post had absolutely nothing to do with the application of Real Property Law (RPL) 232-b (which applies to month-to-month tenancies outside the City of New York). If you review that statute, either the landlord or tenant may terminate a month-to-month tenancy relationship by giving the other notice "at least one month before the expiration of the term."
You'll also note, that outside NYC, the RPL does not require that this notice be in writing. Thus, oral notification may suffice. (Of course, the problem with this latter election is that there will be proof and credibility issues that will need to be decided by a judge in the event the recipient were to disavow such oral notice.)
We strongly encourage you to consult with local counsel to secure a formal opinion that will more adequately and directly address the unique factual underpinnings of your case.
Onward!
Posted by: Lucas A. Ferrara | January 26, 2007 1:23 PM