Whether you are the landlord or the tenant, you need to know your rights. There are certain rights given by law to landlords and certain rights given to tenants. The rights depend on the state and the city, but in New York, for example, the tenants’ rights are considerable. The issues between landlords and tenants are frequent, and there is a special housing court that handles complaints of landlords and tenants if the parties are unable to resolve their differences on their own.
Leases – get it in writing!
Besides the statutory law, the document that most commonly delineates responsibilities and rights of the tenant and the landlord is the lease. It is a very important legal document, and it is in the interests of both the landlord and the tenant to have a valid lease, signed by both parties.
If there is no lease, certain remedies are not available to the landlord in court, and the tenant can be evicted just because the lease ended, even if the tenant pays the rent. If there is a lease that is not renewed (i.e., just expires), the legal relationship between the landlord and the tenant changes—a lot. If there is no lease to begin with, you are simply asking for trouble, regardless of whether you are the landlord or the tenant.
If you are the landlord, you will definitely want an attorney to prepare a residential lease for your tenants to protect your property and your rights as much as the law allows. If you are the tenant, you may want to consult an attorney before signing a lease. Certain rights are given to tenants by law, but not all leases reflect that. In fact, some leases contain blatant violations of the law.
In case of commercial leases, both the landlord and the tenant would be wise to consult an attorney before preparing or signing a lease because commercial leases are given much less scrutiny. Commercial actors are considered “sophisticated” when negotiating and signing a lease. What that means is: with rare exceptions, you will be bound by whatever you signed.
Advice to Landlords
If you are the landlord, your rights include getting paid the rent—on time and in full. You can begin eviction proceedings if the tenant is not paying you rent, if the tenant pays the rent habitually late, if the tenant is damaging your property, for violations of the lease provisions, or if the lease ended but the tenant refuses to move out. Roommates can begin similar proceedings to evict their roommates who do not pay rent. Even in cases of illegal, unregistered apartments, the landlords still have certain rights: they can evict tenants under certain circumstances, but cannot demand rent in court.
Wait a week, lose a month, and every month the landlord may be losing rent. Under New York law, certain notices must be given to the tenant before beginning the eviction proceedings. These notices are governed by strict requirements: when, how, and by whom the notice must be given, how much time must be given to vacate the premises, and from what date the time period begins. In some instances, landlords who do not serve the notice in a timely manner will lose time, sometimes more than a month.
Advice to Tenants
The most frequent complaints about landlords from tenants are that the landlord fails to provide heat, hot water or electricity, that the landlord overcharges rent in rent-stabilized premises, and that the landlord illegally locks out a tenant or fails to perform repairs in the premises. Be aware that sometimes the landlord’s obligations are only triggered by certain things, such as landlord’s obligation to perform repairs, so you need to know what these things are.
If you received a notice from the housing court, do not wait. Sometimes you only have a few days until the hearing in court when you get the notice. Consult with, or retain, an attorney who specializes in landlord/tenant problems. If you do not get an attorney and miss the court date, you may be evicted.
Other issues that complicate the landlord/tenant relationships include whether the property is rent-controlled or rent-stabilized, whether the tenant is receiving Section 8 housing subsidy, what kind of property it is, and even how the landlord acquired the property (with the tenant or from the tenant) may have an effect. There are also many issues concerning security deposits, where and how they are held, and whether they can be used as the “last month’s rent” (usually no). You also need to know what documents and what witnesses to bring to court to prove your case. It seems deceptively simple to represent yourself in housing court, but that usually leads to a loss or dismissal of your case.
I once witnessed how the owner of an LLC that owned the rental property came to the housing court for the eviction hearing, several weeks after filing the eviction petition. This is the amount of time it takes to wait for a hearing. He was turned around and sent home by the judge because he could not represent himself. By law, New York and New Jersey corporations and LLCs have to be represented by an attorney. His case was dismissed despite his vocal protests, and he had to file a new petition and wait over a month for another hearing. Landlord/tenant law is governed and regulated by a multitude of legal details, so you need to have the right attorney on your side.