June 26, 2019

This is Part 2 of my series of articles on the Housing Stability and Tenant Protection Act of 2019 (“HSTPA”). This article is about how the STPA changed procedures in the landlord and tenant litigation process in New York City.[fn1] Part 1 was about how the HSTPA changed the Rent Stabilization Law in New York City. The final article in the series will address other changes in the STPA and will come out in about a week.

I. RPL § 232-a TERMINATION OF MONTH-TO-MONTH TENANCY NEW TIME PERIODS

We have new time periods for terminating a month-to-month tenancy in the City of New York in a new Real Property Law § 232-a. The newly drafted statute incorporates time periods for termination by reference to RPL § 226-c, which states:

“2. (a) If the tenant has occupied the unit for less than one year and does not have a lease term of at least one year, the landlord shall provide at least thirty days’ notice.
(b) If the tenant has occupied the unit for more than one year but less than two years, or has a lease term of at least one year but less than two years, the landlord shall provide at least sixty days’ notice.
(c) If the tenant has occupied the unit for more than two years or has a lease term of at least two years, the landlord shall provide at least ninety days’ notice.”

Commercial month-to-month tenancies in the New York City may still be terminated on 30 days’ notice.

II. RPL § 235-e(d) EXTRA PREDICATE NOTICE FOR RECOVERING RENT

Real Property Law § 235-e has been modified to add the following paragraph:

“(d) If a lessor, or an agent of a lessor authorized to receive rent, fails to receive payment for rent within five days of the date specified in a lease agreement, such lessor or agent shall send the lessee, by certified mail, a written notice stating the failure to receive such rent payment. The failure of a lessor, or any agent of the lessor authorized to receive rent, to provide a lessee with a written notice of the non-payment of rent may be used as an affirmative defense by such lessee in an eviction proceeding based on the non-payment of rent.”

This new subparagraph “d” is tucked at the end of the “Duty to provide a written receipt” section of the Real Property Law. Nevertheless, it seems to me that this new subsection’s implications go far beyond anything to do with providing a rent receipt. There are two major things to consider here. First, does this new requirement apply to commercial tenancies as well as residential ones. Second, how does the new RPL § 235-e(d) notice fit in with the service of a rent demand or notice to cure for failure to pay rent in the commercial context?

A. Does RPL § 235-e(d) apply to commercial tenancies as well as residential ones?

The RPL § 235 series is a little but frustrating. The section has a definite residential feel about it. After all, RPL 235-b codifies the residential warranty of habitability. But one has to be careful. The majority of the sections of the RPL § 235 series state they refer to “multiple dwellings”, “rental agreements for residential premises”, “residential leases”. Yet other sections of RPL § 235 series do not claim to be applicable to only residential tenancies. It is generally agreed that such sections apply also to commercial tenancies. RPL § 235-e(d) does not say that it only applies to residential tenancies. The difficulty arises because the rest of RPLR § 235-e is obviously designed for residential tenancies, and it seems downright silly that this new section “d” should apply to commercial tenancies. A sophisticated commercial tenant now needs a note from the landlord, reminding it to pay the rent, on top of the statutory rent demand?

Nevertheless, RPL § 235-e(d) does not  limit itself to residential tenancies, and therefore, I am going to assume that it applies to commercial tenancies until an appellate court tells me otherwise or the legislature clarifies the matter. 

B. How does the RPL § 235-e(d) notice fit in with the service of a rent demand or notice to cure for failure to pay rent in the commercial context?

Clearly, the RPL § 235-e(d) notice is an additional predicate step that must be followed before a summary proceeding for the nonpayment of rent can be initiated. The RPL § 235-e(d) notice can NOT be combined with the statutory rent demand of RPAPL § 711. They are totally different things. So the question then arises, does the RPL § 235-e(d) notice have to be served before the RPAPL § 711 rent demand? Is so, how much sooner?

Until I get more guidance from an appellate court or the legislature, I am looking for this answer to New York Civil Practice Law and Rules § 2103(b)(2) (Service of papers):

“…where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period if the mailing is made within the state…” 

See also ATM One, LLC v. Landaverde, 2 N.Y.3d 472 (2004), which applied CPLR § 2103 to notices to cure called for in the Rent Stabilization Code. I know, it’s not exactly applicable because RPL § 235(e)-d does not contain a “period of time prescribed by law”, rather it is just a reminder. Yet it seems, to me, that the purpose of a reminder is defeated if the reminder is not allowed to reach the tenant before the landlord issues a formal RPAPL § 711 rent demand. So, until precedent gives us an answer, I am waiting until five days after the certified mailing of the RPL § 235-e(d) notice before I have the landlord issue and serve the RPAPL § 711 rent demand.

Finally, just like a statutory rent demand, the RPL § 235-e(d) notice needs to be issued by the landlord; it cannot be issued by landlord’s attorney. 

III. 14-DAY RENT DEMAND UNDER RPAPL § 711

Rent demands for residential and commercial tenants will now be on 14-days’ notice, up from three days before the Real Property Actions and Proceedings Law § 711 was changed.

RPAPL § 711 goes on to add a special protection for the successors to tenant after the tenant dies. If landlord wants to sue for the rent at that point, landlord may only go after tenant’s estate, but doing so is without prejudice to the possessory rights of the successors. I am not sure this is really a change from how such a claim would have been handled before the statute was amended. 

IV. PAYMENT IS A DEFENSE TO NONPAYMENT RPAPL § 731(4)

Newly added Real Property Actions and Proceedings Law § 731(4) states:

“In an action premised on a tenant defaulting in the payment of rent, payment to the landlord of the full amount of rent due, when such payment is made at any time prior to the hearing on the petition, shall be accepted by the landlord and renders moot the grounds on which the special proceeding was commenced.”

Again, payment was always treated as a defense to a nonpayment summary proceeding, so I am not sure that this section does anything but codify case law and accepted procedure.

V. RPAPL § 732 – NONPAYMENT PETITION RETURNABLE WITHIN 10 AFTER IT IS SERVED, AND RPAPL § 733 – A HOLDOVER PETITION MUST BE SERVED BETWEEN TEN AND SEVENTEEN DAYS BEFORE THE PETITION IS NOTICED TO BE HEARD. 

Tenants now have ten days to answer a nonpayment petition, courtesy of the new Real Property Actions and Proceedings Law § 732.

A holdover petition must be served between ten and seventeen days before the petition is noticed to be heard, courtesy of the new Real Property Actions and Proceedings Law § 733.

Also, RPAPL §743 has been changed to take out that complicated nonsense about if a tenant got served within eight days of the court date they would have to answer within three days of the court date. No one is going to miss that. 

VI. RENT DEPOSIT STATUTE RPAPL § 745(2) MUCH LESS VERSATILE FOR LANDLORD

RPAPL § 745(2) now says that after two adjournments requested solely by tenant or sixty days charged solely to tenant (as opposed to thirty days), whichever is shorter, that landlord can move for tenant to be ordered to deposit ongoing use and occupancy (i.e. rent). Also, those adjournments don’t count against tenant if tenant is asking for the time in order to get a lawyer. 

The new RPAPL § 745(2) tells us that this request has to be made via a motion (not an application) and that the court can only order the deposit of use and occupancy going forward from the date of the court’s order (as opposed to use and occupancy that accrued from the date of the petition). 

The new RPAPL § 745(2) also expands the lists of defenses that, if interposed properly by tenant, will defeat the motion for the rent deposit. Such defenses include:

“(i) the petitioner is not a proper party to the proceeding pursuant to section seven hundred twenty-one of this article; or(ii) (A) actual eviction, or (B) actual partial eviction, or (C) constructive eviction; and respondent has quit the premises; or(iii) a defense pursuant to section one hundred forty-three-b of the social services law; or(vi) a defense based upon the existence of hazardous or immediately hazardous violations of the housing maintenance code in the subject apartment or common areas; or(v) a colorable defense of rent overcharge; or(vi) a defense that the unit is in violation of the building’s certificate of occupancy or is otherwise illegal under the multiple dwelling law or the New York city housing maintenance code; or(vii) the court lacks personal jurisdiction over the respondent.”

Under the new RPAPL § 745(2), if tenant is ordered to deposit the ongoing use and occupancy but fails to, the court no longer has the discretion to strike the tenant’s answer, containing tenant’s defenses and counterclaims. 

RPAPL § 745(2) is not getting a lot of attention, but I predict this is going to be one of those quiet game-changers, because this section will affect tactical considerations by both sides. When it is less likely that a tenant will be ordered to pay rent during a proceeding, a judgment-proof tenant then has little incentive not to delay the case if said tenant values the opportunity to gain time to either live rent free or find his or her next home. This should increase a landlord’s incentive to settle quickly on terms favorable to tenant. 

VII. RPAPL § 749 WARRANTS

Real Property Actions and Proceedings Law § 749, regarding warrants of eviction, has changed.

The warrant now must include the earliest date upon which it can be executed.

The new RPAPL § 749 allows the court to stay re-letting and renovation of the premises for a “reasonable period of time”. The language of the statute is not clear to me, but I assume this means for a reasonable time after the warrant is executed. 

A tenant must now receive at least fourteen days’ notice of an eviction served upon tenant by the marshal.

The new RPAPL § 749 no longer says that the landlord and tenant relationship is terminated upon issuance of the warrant, and goes on to say that the tenant may pay the full rent due anytime before the warrant is issued, which will cause the court to vacate the warrant. 

VII. LONGER HARDSHIP STAYS AND THE RIGHT TO CURE RPAPL § 753

As per RPAPL § 753:

“In the event that [a] proceeding is based upon a claim that the tenant or lessee has breached a provision of the lease, the court shall grant a thirty day stay of issuance of the warrant, during which time the respondent may correct such breach.”

The tail-end cure period used to be only ten days.

Also, as per RPAPL § 753, the court can stay the issuance of a warrant of eviction for up to a year in the event of hardship. What “hardship” might mean is spelled out in detail and should be reviewed by all practitioners. Again, as always, I encourage everyone to read the law closely for themselves. 

IX. RPL § 223-b THE RETALIATORY EVICTION DEFENSE HAS BEEN EXPANDED TO ENCOMPASS MORE TENANT ACTIVITIES

The retaliatory eviction defense has been expanded to encompass more tenant activities. 

First, landlord retaliation is prohibited not only when tenant complains to a government authority, but also when tenant complains directly to the landlord or to landlord’s agent.

Second, landlord retaliation is prohibited not only when tenant alleges a violation of law but also when tenant alleges a violation of the warranty of habitability.

Third, landlord may not, among other things, retaliate by outright refusing to renew the lease or offering to renew the lease at “an unreasonable rent increase”.


Fourth, the rebuttable presumption now exists for a year from tenant’s attempts to enforce her rights; the presumption formerly existed for six months from such complaint. 

X. RPAPL § 702 – IN A RESIDENTIAL SUMMARY PROCEEDING, ONLY RENT MAY BE SUED FOR, NOT ADDITIONAL RENT OR LATE FEES

In a residential summary proceeding, only rent may be sued for, not additional rent or late fees. RPAPL § 702 states:

Rent in a residential dwelling. In a proceeding relating to a residential dwelling or housing accommodation,  the  term  “rent”  shall mean  the  monthly or weekly amount charged in consideration for the use and occupation of a dwelling pursuant to a written or oral rental agreement.  No fees, charges or penalties other than rent may be sought in a summary  proceeding  pursuant  to  this  article,  notwithstanding  any language to the contrary in any lease or rental agreement.

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fn1. This article is NOT exhaustive as to how the STPA changed procedures in the landlord and tenant litigation process in New York City. This article is also boring. What can I say, procedure is boring, but important.