What do you do when you suspect a tenant has permanently vacated a commercial or residential space and has left others in possession (without the landlord's consent)?
Without a tenant's documented surrender, it is best to make no assumptions and to start a holdover proceeding in which the tenant and all those who remain in the premises are named in the legal papers and served. As the Appellate Term, 9th and 10th Judicial Districts, demonstrated in Valley Dream Housing Company, Inc. v. Lupo , only bringing a case against the remaining occupants is a risky strategy, even when it is uncontested that the tenant has left the space and does not intend to return.
In that Nassau County District Court dispute, the landlord alleged that the tenant had permanently relocated to a nursing home, and that the daughter (who remained in the unit) was nothing more than a "licensee," whose right to occupy the apartment had been terminated.
Despite the fact that the occupant conceded that her mother "vacated the premises with no intent to return as she left to reside permanently in a nursing home about March 3, 2002," the District Court still dismissed the holdover proceeding. And, on appeal, the Appellate Term affirmed noting as follows:
'Absent a surrender of possession by the tenant ... the lessor must obtain a judgment of possession against the lessee pursuant to RPAPL 711 and may not proceed directly against the undertenant, whether licensee, subtenant or occupant, pursuant to RPAPL 713' ... In the circumstances presented, the relocation of the tenant of record from the premises to a nursing home, leaving her mildly retarded daughter in the premises, did not constitute a surrender of possession, and this RPAPL 713 proceeding does not lie.
Wanna sleep better at night?
Let Valley Dream show you the way.
For a copy of the Appellate Term's decision, please use this link: Valley Dream Housing Company, Inc. v. Lupo
Note: While the court did not reach the issue, it would appear that the daughter may be able to assert a succession claim (an independent entitlement to remain in the unit as a tenant). For our blog posts on that topic, please use this link: Succession
For our take on why an "illegal sublet or assignment" case might also have been unsuccessful, please download our piece entitled, "Illegal Sublets: When Family Matters," by using this link: FNF Newsletter (May 2006)