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Need to give roommate/tenant Notice of Termination? Eviction Process

Discussion in 'Eviction, Recovery of Premises' started by nyclandlord, Jul 28, 2014.

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  1. nyclandlord

    nyclandlord Law Topic Starter New Member

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    I'm trying to figure out whether I need to give my roommate/tenant a Notice of Termination, and if so, what is the earliest date I can put on the notice of termination. I am also considering obtaining an Order of Protection against my roommate/tenant.

    My tenant/roommate and I have an agreement that he pay me rent plus utilities monthly, in exchange for him staying at my condo, where he has use of a bed and all common areas, and I also live at my condo. The property is in Manhattan (New York county).

    Tenant/roommate paid rent for April plus an amount that covers part of the utilities for April. Tenant has not paid any more, so he currently owes me full rent and utilities for May through July, as well as the remainder of April utilities.

    I have not lived at my condo since May 25, 2014. I have returned briefly only an average of once a week since then to check mail for myself and my roommate, as well as pick up any belongings I need.

    Since May 25, 2014, I have not felt comfortable staying at my place with this roommate present because he had a drunken PTSD (posttraumatic Stress Disorder) episode that began Friday 5/23/14 and lasted for approximately a week. This episode scared me enough that I have not slept at my condo since the night of Saturday 5/24. During this episode, he threatened to kill himself, asked me to kill him, and threaten bodily harm to my boyfriend, whom he hates.

    On 5/28/14 around 12:30 AM, my boyfriend and I called the police because the roommate was threatening to come out and beat up my boyfriend. When the police arrived, they questioned both of us, then had an ambulance take him to a local hospital for a psychological evaluation of mental disturbance. I believe the hospital released him around 1:30 AM; he texted me at 2:06 AM saying he was back in my apartment. I believe he told the cops that we had been dating but that I had left him for my current boyfriend, which is not true as tenant and I had never dated, and I have been dating my current boyfriend since February.

    Since then, roommate/tenant has been very volatile. Sometimes he would be nice and apologetic about the incident, and at other times he would lash out at me. We have been in touch on most days via google chat or text message. I have told him that I wanted him to move out. At first I urged him to move out on the June 28 date that he had previously stated on 5/25, but after he begged me not to throw him out onto the street and asked for more time we agreed that he could stay until the end of July. I have been under a significant amount of emotional distress from having to stay away from my home for so long and read his threatening messages.

    Tenant/roommate and I agreed as early as June 23 over google chat (written chat history is available) that he would move out and pay back rent by July 31.

    I have not served him a notice of termination. We just agreed over chat and text message (for which I do have written history) that he will move out by July 31. Since then, we have discussed this matter over chat and text message several times over the last month, namely that he needs to move out.

    I have a roommate rental agreement with him that states the following, which, combined with the facts listed above, I believe establish that the arrangement will end July 31:
    "If rent is not received for a given month, it may be considered as notice/intent to move out on the part of Roommate, at the discretion of Owner."
    "This agreement is on a month*-to*-month basis. Either party may, with or without cause, choose to end the arrangement by giving the other party at least one month of notice in advance. Roommate agrees to move out by the end of that time period."

    I considered evicting my roommate/tenant for nonpayment of rent, but I am now strongly leaning toward just doing a holdover petition plus possibly an order of protection because my top priority is to get the roommate/tenant out as soon as possible and ensure that he never comes back to stalk or harass me or my boyfriend. I also would like to be paid back rent, but that is secondary to removing him from my home.
  2. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    Sorry for the very late reply. I just noticed this question was unanswered. In general, the words in the lease govern the relationship between landlord and tenant. In the absence of a clause that defines lease termination, state law will usually provide minimum periods for which a landlord must provide to a tenant in order to terminate a lease. In New York, the Real Property Law Statute provides for, by default, a 30 day termination notice:

    Real Property § 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.

    As to what notice you need to provide... that's a tough one. I'd say you need to provide notice since it says that non-payment "may" be considered an intent to move out. What does that mean? It may or may not. If you want to evict, you need to send a termination notice one month in advance. Based upon the last clause, you may need to provide at least one month notice prior to a date when rent would be due, e.g. if rent was due in 10 days, you'd need to provide a notice before the following date rent would be due, which would be 40 days from today.

    The New York State Tenants' Rights Guide is provided by the New York State government and can be quite helpful.

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