Month to Month Lease Question

sachinc, if the landlord cashes your check, I believe that makes you officially a month-to-month tenant, regardless of whether there's language about that on the lease. In general, I find it best to communicate with the landlord on exactly what's going on, especially if it's a small-time landlord. I would also try to negotiate on the rent, especially if they are shooting for an increase. Good luck!

Thanks for your advice.

Any thoughts on how much notice a landlord has to give to allow a month to month tenant to vacate the apartment?

They have to give you at least 30 days' notice. Note that that can be different from one month's notice. The landlord can also raise the rent any given month, with your consent of course.

"The landlord can also raise the rent any given month, with your consent of course."

our ever-helpful bj at work!

Our ever-annoying troll at work! Such a shame...

Once the Sept check is taken, you are a month-to-month tenant. Possibly the sending of a Sept invoice could be enough to establish month-to-month tenancy, but I'm not sure. At that point, the LL is required to give you 30-days notice. So if you receive notice on Sept 1, you have to leave on Oct 1. If you do not, then the LL can provide you notice by Oct 1 to vacate by Nov 1.

I believe the rental market has somewhat weakened based on some benchmarks I follow, so a 10% increase seems pretty aggressive even by the "always ask for a slightly-greater-than-market increase" good business practice of LLs. You are also in a much better position to negotiate, now & in the future, if you put yourself on a later rental cycle. I would suggest you keep quiet for a month or two and stay as month-to-month. Then, force the issue for a Nov 1 or Dec 1 lease (with actual backup places you'd be willing to move). I would not stay month-to-month past the winter, because you don't want the LL forcing the lease issue come next summer.

See http://www.housingnyc.com/html/resources/attygenguide.html#3 for more details.

Thanks bjw2103 and inonada!

All very helpful!

sachinc, no problem - I absolutely second inonada's suggestions as well. Nov/Dec leases tend to be favorable since there are generally fewer renters looking around. So definitely push for lower rent if you can. Good luck!

ionada's suggestions from tenant strategies are always of great value--if i ever move i will ask for a review

do be aware tho, sachinc, that the landlord can do whatever he/she would like with you rent, WITHOUT your consent. ecept for when there is a lease in force, in which case your rent is fixed.

if you are month to month the landlord may assess any new rent he/she desires, with 30 days of notice for you to leave if you don't agree to the new rent.

of course this has nothing to do with your consent.

"do be aware tho, sachinc, that the landlord can do whatever he/she would like with you rent, WITHOUT your consent."

No, bottoms, this is false. Refer to inonada's helpful link, specifically this bit:

"A landlord may raise the rent of a month-to-month tenant with the consent of the tenant."

bjw, your intellect is so narrow.

If the landlord wants a higher rent and the tenant doesn't wish to pay it, then the landlord can terminate the month-to-month tenancy with 30 days notice.

Yes, now explain how that has nothing to do with the tenant's consent.

really, you are going to stick with that logic?

Honestly, I have no idea what you and bottoms are even contesting that "this has nothing to do with consent." The language is plain as can be. But hey, you guys think you look good in grey...

*why*, not what.

so Wbottom and I can't stand each other, but we do agree that you are an idiot.

You're welcome, sachinc.

I don't mean to add fuel to the fire on "consent" here, I see both sides of the argument, but perhaps it would come into play as follows. The LL asks for an increase, but tenant does not consent in anyway. Instead, he sends a check on the 1st. He's good for the month as it's too late for LL to provide notice. Not a great move IMO, but that would be my lay interpretation.

Nope, the landlord has already provided notice. Rent is X. You don't want to pay it, fine, 30 days out.

when will you be out?

of here?

good one

'nada, in your scenario, doesn't the LL have to cash the check for the tenant to be good for the month? If the LL is smart, he/she will demand an answer on the increase or negotiate to an amount they're ok with, before the 30-day clock starts, so that he/she can give proper notice and not "lose" that month, no? Regardless, I'm still not sure how the trolls think the tenant's consent doesn't factor in here. At one point or another, the tenant has to agree for any rent increase to take place. Pretty basic.

Bjw, if cashing of a check were required, how is the tenant to know if/when it occured?

'nada, presumably the tenant would not send a check with the expectation that it NOT be cashed, but if the tenant's playing this game, simply checking your bank account online will tell you if/when it occurred. A RE lawyer might be better able to answer this, but I've always been under the impression that a cashed rental check is tacit agreement on tenancy until at least the following month. If the LL really wants you out, he/she has to notify you anyway. But this is why I've usually found it best just to keep good communication with the LL - you avoid these weird instances altogether.

Agreed on it being best to avoid altogether. The law is spelled out in Real Property Law 232, but I can't get to it on my phone at the moment. I'd guess it explicitly defines how notice must be provided, presumably written if it's anything like the other parts of the Real Property Law I have read.

The laws are fun to read. Most interesting are items that say "any waiver to the contrary of section X is null and void". I've seen idiot lawyers strike out clauses in the standard lease (like requirement to provide notice on where deposit is being held). For a lay person to do it, it's one thing. But a lawyer? Yeesh. Beyond the idiocy of not knowing the law, it also smacks of hubris. Those standard lease forms are so obviously one-sided, but here this genius lawyer figures out how to make it better for the LL. No, you shithead, it's in there so that you have explicit instructions so as not to run afoul of laws that can get your client into trouble.

> If the LL really wants you out, he/she has to notify you anyway.

Right. You've been paying $2000 / month through the term of your lease which is now expired. Next month, the rent is $2500. If you don't want to pay $2500, then this is your 30 days notice.

I need Jason here to call bjw an idiot, because apparently I'm not doing it well enough.

BJW, you are streeteasy's biggest wimp, even more than midtownereast. Yet you are going to fight a landlord with your logic? You've even displayed ignorance regarding the difference between principal and interest.

Notice must be written and apparently requires a threat of eviction proceedings alongside it for it to count:

http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=$$RPP232-A$$@TXRPP0232-A+&LIST=LAW+&BROWSER=BROWSER+&TOKEN=57470889+&TARGET=VIEW

Acceptance of rent for any period after end of lease establishes month-to-month tenancy as of the end of the lease term:

http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=$$RPP232-C$$@TXRPP0232-C+&LIST=LAW+&BROWSER=BROWSER+&TOKEN=57470889+&TARGET=VIEW

'nada, it definitely smacks of hubris when a lawyer starts striking out some of those clauses. They assume you don't know the law, and sadly, in many cases, the tenant doesn't. It gets even better when they get defensive/take it personally once called out on it.

hburg, http://www.youtube.com/watch?v=EL8e2ujXe8g

"I've always been under the impression that a cashed rental check is tacit agreement on tenancy until at least the following month."

So I think for the first month, that is true (or arguably mere accepting a handed-over check). However, for later months, written notice with threat of eviction seems required.

"So I think for the first month, that is true (or arguably mere accepting a handed-over check). However, for later months, written notice with threat of eviction seems required."

Not sure I follow - if the LL keeps accepting/cashing checks, month-to-month tenancy continues, but the LL can concurrently send a written notice with threat of eviction? How does the tenant recoup that last month's rent check if it's cashed and he/she is moving out? I'd be surprised if the law allowed that.

dopey bj--arguing semantics from such a weak platform: her brain

consent implies permission, agreement in advance of execution

landlord needs no consent where transmitting a rent increase to a month to month tenant--and the message is clear: pay new, higher rent or be evicted--if tenant refuses to vacate and underpays rent, the acceptance of underpayment by LL changes nothing legally re the eviction or tenant's indebtedness to LL

feel free to blather on about this simple concept, bj--standard procedure

some day, say something useful pls--just for the shock value

Bottoms, you're the one arguing semantics here. But you're wrong, even by your own dumb words.

"landlord needs no consent where transmitting a rent increase to a month to month tenant"

Transmitting a rent increase? That's some dopey verbiage to mean propose an increase. If the tenant does not consent to the increase, does it take effect anyway? Of course not. Did you actually think I meant that the LL needs permission to send the tenant a letter? Because that would be hilarious. Feel free to blather on in your tiny grey font.

If you've given notice of termination of month-to-month tenancy, then you shouldn't accept any more rent. If you do, you establish a new month-to-month tenancy because you accepted a check for beyond the term of the original month-to-month tenancy.

Wbottom, if LL sends a letter stating "your rent is now higher" and the tenant ignores it, it does not terminate tenancy implicitly. The law pretty clearly states what must be done to terminate it. Read the first link, it's pretty succinct.

And given that the tenant has not consented to the increase (evidenced by the old amount on the check written), the attempt to increase is not effective. LL may seek to terminate tenancy subsequently, but that's it.

'nada, that's how I read it as well. But as you say, it's pretty clear.

OP should check with a tenant lawyer and not rely on anonymous internet advice. That said, to the best of my recollection and assuming the law hasn't changed in the last couple of decades, I think a lawyer will tell you something like this about non-stabilized apartments (stabilization changes the rules):

If the LL accepts rent after the expiration of the initial lease, a month to month tenancy is created. "Accepting" does not require cashing a check, but cashing is the clearest evidence that it has been accepted. The OP says the LL sent a bill for the old amount; most likely that will be treated as an offer to accept the old rent, and the deal is done as soon as OP puts a check in the mail, whether or not LL cashes.

Once the tenancy is created, it is recreated every month unless the LL takes the appropriate action to end it -- a properly served 30 day written notice of termination.

If the LL gives proper notice, it may collect the final month's rent and then file an eviction action at the end of the lease term.

If it fails to commence eviction or accepts more rent or takes other actions indicating intent to continue the tenancy, a new tenancy is created. If the LL still wants to evict, it needs to start over again.

WB is wrong, so far as I know, to think that a LL can unilaterally create an obligation to pay a different rent: leases must be consensual.

If the LL wishes to increase the rent, it may do by serving appropriate notice the required number of days before the lease ends. IIRC, the notice requirement is similar as for eviction.

If the tenant pays the new rent, that's consent.

If the tenant ignores the notice of rent increase and tenders the old rent, the LL may accept it -- in which case, a new month to month tenancy is created at the old rent, because that's what the parties have agreed to.

Or LL may reject it and sue for non-payment. In this case, the tenant may contest the notice and, if notice is determined to have been proper, will be given an opportunity to cure (i.e., pay the back rent and renew the tenancy for another term).

In some states, the tenant's continued occupancy might be deemed to be consent to the higher rent, but I don't think NY follows that rule. Accordingly, the LL does not have the the option of accepting the payment as partial payment of the purported new rent, because that would bind a tenant without the tenant's consent.

As far as I know, if LL wins the non-payment action, it will be allowed to recover the old rent only, since that it the only one that the tenant agreed to pay. It will usually also be given an order of eviction if the tenant doesn't pay the back rent by some stated date.

However, as a practical matter, either action takes a long time -- sometimes years, if the tenant has the skill, time and energy to play the game fully -- and generally tenants don't pay rent during litigation. So usually the matter will be resolved by the tenant agreeing to move out in return for the LL waiving any unpaid back rent. Or by the parties agreeing on a rent and lease term.

FG, very nice & thorough analysis!

my experience says otherwise--if a tenant is month to month, with proper notice, a landlord may, without any "consent" of the tenant, announce to tenant that rent is to be increased--if tenant fails to respond and merely continues to send the old rent amount, landlord may cash said checks, begin eviction based on underpayment of rent, and sue tenant for shortfall on rent paid to LL until tenant quits premises

re the op, if he/she is currently receiving statements indicating the expired lease's rent, he/she is home free to remain month to month at the old rent, until LL announces specifically a higher month to month rent, invoices at such higher rent, or provides 30 days' notice for the op to quit premises

LL needs no consent of tenant to raise the rent of the month to month tenant--LL simply notifies (with 30 days' notice) that the tenant's rent is now a higher amount--tenant becomes bound to the higher rent...remains paying new higher rent, leaves, or is evicted with an ongoing liabilty foir any underpaid rent due
LL dictates new rent for a month to month tenant--consent aint an issue--it's pay or leave

Bottoms, the law is pretty clear and succinct. Your "experience" may be something else, but that don't make it legal. Bottom(s) line is, tenant has to consent to the rent increase for it to be effective. I don't believe a LL can start cashing checks for partial amounts and then sue for underpayment. That reeks of abuse.

blowjob--your belief that you understand anything, let alone ll/tenant law is consistent with the fail all of your blather represents

the law provides that a LL may at any time, with 30 days written notice, dictate that the month to month tenant has the option to pay a new, higher rent; or vacate

and, if the tenant refuses to vacate, and underpays said new higher rent, that tenant is liable for said rent, whatever rent tenant chooses to pay after the notice period has expired, and regardless of whether the landlord has accepted partial payment

now blather on

Bottoms, 'nads and fg have already explained why you're wrong, but keep digging that hole. Funny image that - a giant ahole digging a new one for himself.