According to New York's appellate courts, the mere signing of a lease by the landlord and a tenant doesn't make the document valid or enforceable. "Something else" needs to occur.
In Dlugosz v. O'Brien, Mr. Dlugosz sought to rent a small storefront -- somewhere in Saratoga County -- from Mr. O'Brien. On Tuesday, December 14. 2004, O' Brien handed Dlugosz a one-year lease agreement which bore O'Brien's signature. That Friday, Dlugosz attempted to return the fully executed document and to tender a cash security deposit to the landlord, but was rebuffed. Supposedly, O'Brien preferred a check rather than cash. Several days later, when Dlugosz returned with a check, he was informed that O'Brien no longer wished to lease the space.
Dlugosz later filed suit in the Saratoga County Supreme Court seeking "specific peformance" -- compelling O'Brien to honor the lease agreement's terms -- together with an award of damages. While the Supreme Court dismissed the case for "lack of consideration," the Appellate Division, Third Department, affirmed the outcome for different reasons.
Citing 219 Broadway Corp. v. Alexander's, Inc., a 1979 decision by the New York State Court of Appeals, the AD concluded that "delivery" of a lease was an essential element to formalizing the landlord-tenant relationship. Here's the quote the AD lifted from the the 219 Broadway Corp. case:
"The due signature of the lease instrument is but one step in the process of conveying an interest in land. Delivery requires something more. There must be evidence of an unequivocal intent that the interest intended to be conveyed is, in fact, being conveyed. The mere signing of the instrument by parties not in the presence of each other, without more, does not evince such intent ...."
So, what's a "delivery?"
Since that term is neither precisely defined nor "controlled by fixed formalties," courts will examine the facts of each case to see whether the parties -- by their words and/or deeds -- intended to engage in a transfer of the property and establish a landlord-tenant relationship. In this particular instance, since Dlugosz could not establish an intent on behalf of the landlord to consummate the deal and transfer the property, the AD signed, sealed and delivered an unfavorable outcome.*
For a copy of the Appellate Division's decision in Dlugosz v. O'Brien, please use the following link: http://www.nycourts.gov/reporter/3dseries/2007/2007_00185.htm
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*Interestingly, the AD was also of the opinion that Dlugosz was never given "actual physical possession" of the space, even though he had a key. So, apparently, having a lease and a key may not be enough.