Renewal Leases

What if the landlord fails to provide them?

New York tenants are reputed to be pretty tough, but in some things, they are easily spooked. One of the things that cause heartburn to the average rent-stabilized tenant is when the landlord fails to provide a renewal lease. Tenants suspect that the landlord is planning to evict them, or has some other trick up his sleeve. Well, if the landlord was planning on not renewing your lease, he is generally required to send a notice of non-renewal to you within 90 to 150 days before your lease is to expire. If you have not received a notice of non-renewal, then you would be entitled to the renewal lease.

Here is the timetable:

• Almost every landlord of a rent-stabilized building has to offer a renewal lease to the tenants not more than 150 days and not less than 90 days prior to the end of the tenant's lease term.

• After that, the tenant has 60 days to accept the renewal lease.

• After the landlord gets the renewal, the landlord has to sign it and return one copy to the tenant within 30 days.

Are a tenant's rights affected if the landlord fails to provide a renewal lease? No. Rent Stabilization Code § 2523.5(a) specifically states that the "tenant shall not be deprived of any of his or her rights under the RSL and this (Rent Stabilization) Code."

So take, for example that the landlord just forgot to provide a renewal lease to a tenant. The last lease has already been expired for six months, and the tenant has simply been paying the old lease rent. The landlord says "Whoops! Let's get that renewal lease out lickety split, so that we can get our renewal increase." So he gets his managing agent to type up a renewal lease, and send it in the mail, six months late.

The question is, once the tenant signs the renewal, does the landlord have the right to collect six months of back increase?

A tenant called in to my TV show and asked this question, and I didn't know the answer! I told her that since she is going to get the late renewal lease any day, she should save her money in case she gets the retroactive charge of 4 % or 6 %.

After the show, I went back to my office, and I received the following email.

"A tenant called in a question on your show about paying retroactive rent when she finally gets a renewal lease. I am a rent-stabilized tenant of long-standing on the upper west side in a large rent stabilized complex. I cannot quote chapter and verse, but I am very sure that the law is that until she has a signed renewal lease the tenant continues to pay the old rent and the new rent goes into effect once the lease is signed. The landlord cannot get retroactive rent."

Well, I was interested in this issue, and as I said, I told the caller that I wasn't sure. So I checked it out and found that the emailing tenant was right: a tenant who gets a late renewal increase does not have to pay a retroactive increase. When I did find out the "chapter and verse," I found out that the picture was even sweeter than that. Not only is the tenant in my example not required to pay the back increase of six months, but she does not have to pay the renewal increase for a few months going forward either.

According to Rent Stabilization Code section § 2523.5(c)(1), the tenant has the option to have the renewal increase commence "no less than 90 days after the date that the owner does offer the lease to the tenant." In any event, "the effective date of the increased rent under the renewal lease shall commence on the first rent payment date occurring no less than 90 days after such offer is made by the owner." What this means is that the rent increase will take effect more than 90 days after the landlord finally mails the renewal out. Therefore, in our example, the tenant not only does not have to pay the six months back increase, but also is also relieved of having to pay a renewal increase for an additional three months. Therefore, by failing to renew the lease for six months, the landlord has accepted the old lease rent for a total of nine months.

After ten years of advising tenants, I still discover something new everyday.