What happens when my month-to-month tenancy expires?

I probably receive one phone call each month from a tenant that received a “30 day notice” from a landlord.  The person is usually outraged the landlord has demanded that he or she leave the premises within 30 days and asks me:  “He can’t do this, right . . . don’t I have a right to stay?

Unfortunately for most tenants, the answer is usually “yes, he can do this.”  Let’s take a look at the NYS Real Property Law on this issue:

Sec. 232-b. Notification to terminate monthly tenancy or tenancy from month to month outside the city of New York.

A monthly tenancy or tenancy from month to month of any lands or buildings located outside of the city of New York may be terminated by the landlord or the tenant upon his notifying the other at least one month before the expiration of the term of his election to terminate; provided, however, that no notification shall be necessary to terminate a tenancy for a definite term.

Sec. 232-c. Holding over by a tenant after expiration of a term longer than one month; effect of acceptance of rent.

Where a tenant whose term is longer than one month holds over after the expiration of such term, such holding over shall not give to the landlord the option to hold the tenant for a new term solely by virtue of the tenant’s holding over. In the case of such a holding over by the tenant, the landlord may proceed, in any manner permitted by law, to remove the tenant, or, if the
landlord shall accept rent for any period subsequent to the expiration of such term, then, unless an agreement either express or implied is made providing otherwise, the tenancy created by the acceptance of such rent shall be a tenancy from month to month commencing on the first day after the expiration of such term. 

The first question I ask the caller is “do you have a lease?”  If you don’t, you are deemed a month to month tenant, and subject to your tenancy being terminated by the landlord after service of the 30 day notice under 232-b above. Also, as stated in 232-c above, if you had a lease but it expired, you are then deemed a month to month tenant (unless the lease states otherwise or you are protected by another law) and subject to the 30 day notice.

The law allowing for the 30 day notice is pretty clear, and there are very limited defenses under the law for a tenant to raise.  If you do not vacate the unit within 30 days, you will soon receive a petition that will lead to eviction.  Unless the tenant comes up with a valid defense (and I have not seen this happen very often in these cases), the judge will grant the petition, and then give the tenant a short window to vacate.  And if you do not vacate when the window closes, you can expect a visit from a sheriff or marshal waiving an eviction warrant, who will conduct a forceful removal from the dwelling and your belongings may end up on the sidewalk.

What is the best way to avoid being evicted from your residence by a 30 day notice?  The answer is simple – sign a lease with the landlord – and you will have more protection as a tenant as compared to a month to month tenancy.

Please feel free to contact me if you have any questions.

James Maisano, Esq.
O 914-636-1621

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