Will the acceptance of rent, after a tenancy's termination, reinstate the landlord-tenant relationship?
Not necessarily, according to a decision issued last week by the Appellate Term, First Department.
In 8 W. 9th St., LLC v. Hunter , the New York Civil Court granted a tenant's motion to dismiss a holdover case on the basis that the landlord had accepted two post-termination rent checks (one for July, another for August) prior to the proceeding's commencement -- thus "waiving" any right to maintain the case.
On appeal, the AT1 disagreed, noting that a "waiver" requires an intentional reliquishment of a known right and that the issue of whether or not the owner intended to rekindle the landlord-tenant relationship was a question which needed to await a formal hearing or trial. Here's how the court put it:
Tenant's motion to dismiss the holdover petition should have been denied since the record does not establish as a matter of law that landlord "intended to relinquish a known right" ... when it initially accepted tenant's check covering the July and August 2005 rent after termination of the tenancy and prior to the commencement of the holdover proceeding. Triable issues exist as to landlord's intent ..., at least on this record, which shows that landlord rejected the tenant's initial, "window period" tender of the July 2005 rent.
Looks like the appellate court shot down this Hunter!
For a copy of the Appellate Term's decision, please use the following link: 8 W. 9th St., LLC v. Hunter