Courts are Applying the "New" Predicate Notice Law to Old Cases

Courts are Applying the “New” Predicate Notice Law to Old Cases

Apartment Rowhouses

In mid 2019, the New York State Legislature passed sweeping legislation which affected all kinds of housing laws and regulations within the State of New York. The laws, collectively referred to as the Housing Stability and Tenant Protection Act of 2019 (“HSTPA”) marked a huge shift in the landlord-tenant dynamic to strengthen tenant protections, and making evictions more challenging.

One of the changes in the laws changed the predicate notice requirements, which used to be found in Real Property Law Section 232-A. (In a previous article, I outlined the specifics of the language in-depth.) Under the old Section 232-A, when a landlord sought to evict a tenant that did not have a lease, the landlord would have to serve a notice giving the tenant at least thirty days notice before the commencement of the eviction case. The thirty day notice was required, irrespective of the time the tenant had been living in the premises.

The Old Predicate Notice for Eviction

By way of example, if a landlord wanted to evict a tenant that had no lease, the landlord would serve a notice before the end of the month (let’s say before the end of June). The notice would designate July 31 as the date the tenant would have to vacate and turnover the premises, otherwise the landlord would commence an eviction case. If the tenant didn’t move out and turnover possession of the premises on or before July 31, the landlord would then be able to commence the eviction case on August 1.

The New Predicate Notice for Eviction

Under the new law, the length of the notice is determined by the tenant’s tenancy. If the tenant has been in the premises, less than a year, a thirty day notice may be served. If the tenant has been in the premises for at least a year but less than two years, a sixty day notice must be served. If the tenant has been in the premises for two years or more, a ninety day notice must be served.

While the change in notice length marks a huge shift in the law, there was an unanticipated consequence, at least for many practitioners and landlords in the process of evicting tenants. This change in the law (applying to the predicate notice) did not take effect until October 12, 2019. Thus, many lawyers and landlords (including myself) served the old thirty day predicate notice prior to the start date of this law.

Many lawyers and landlords, including myself, have been surprised to learn that the courts are applying this new law even when it had not taken effect. This has resulted in many evictions being dismissed, increasing the amount of time tenants can remain in possession of premises, and also increasing the time it will take to evict these tenants.

Courts Are Applying the New Law to Old Cases

For instance, in a case of mine, the landlord wanted to evict a tenant that did not have a lease. The tenant has been living in the premises for about a year and a half. A thirty day notice was served before the end of September (prior to the effective date of the new law), which gave the tenant until the end of October to vacate the premises and turnover possession to the landlord. (By the time we served the notice, the tenant has not paid rent in four months.)

The end of October came and went, and tenant did not leave, so landlord advised to file the petition. The petition was filed at the beginning of November, and a court date was set.

During the first court date, where eviction cases are conferenced with the court attorneys for resolution discussions, the court attorney advised that the predicate notice was defective. I asked why, as it was served prior to the effective date of the new law. The court attorney advised that judges are applying the new law based on when the petition was filed. I was further told that since the petition in this case was filed after the October 12 date, a sixty day notice was required to be served.

Personally, this is an absurd result. The legislature, while passed this sweeping legislation, made a choice to delay the effective date of these changes until October 12, 2019. It makes no sense that a thirty day predicate notice served on September 20, 2019 (when the law stated that a thirty day notice shall be served) is deemed defective based on a law that came into effect after the date it was served.

The practical result of this is even more absurd. For lawyers like myself, that have had their cases dismissed because of this application: (1) our clients are very unhappy with cases being dismissed, and more time and money being wasted; (2) landlords are being dramatically hurt because not only did they waste the time to get to court to be told the notice is defective, but now they may have to re-serve larger notices, plus the costs involved in this, all the while they may not be receiving rent or use-and-occupancy.

Conclusion

If you ask landlord-tenant attorneys, the majority will tell you that the HSTPA increased tenant protections in a major way. Every aspect of evicting a tenant has become more challenging. Even in the cases where a tenancy is non-lease, non-rent stabilized, the HSTPA has created procedural hurdles that are proving daunting. The change in the predicate notice law, for instance, sought to increase the notice length for certain tenancies. In how the law is being applied, however, it’s being applied to cases even when the law had not yet taken effect. The result of this is shifting the costs and burden of bad tenancies (and lost revenue) to landlords to bear.

If you would like to learn more about evictions, then contact the Law Office of Richard Kistnen at (718) 738-2324 or rkistnen@LORK.nyc.

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