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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Landlord-Tenant
Satisfied Customers: 110493
Experience:  Attorney with over 24 years experience.
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I have a NYC tenant which is a chronic non pay, and late pay

Customer Question

I have a NYC tenant which is a chronic non pay, and late pay situation. The tenant has not paid June rent. Tenant has a six month lease which ends in December 2016. The tenant has been brought to court successfully for four non pays and one holdover in 1 1/2 years. I want to start a holdover for chronic non pay/ late pay. Do I need to send a 10 day notice to cure? It would seem that this is not curable, or can I just send the 10 notice to terminate?
Submitted: 4 months ago.
Category: Landlord-Tenant
Expert:  Loren replied 4 months ago.

Good afternoon. I am Loren, a licensed attorney, and I look forward to assisting you.

You can just file suit to evict based upon a nuisance holdover established by chronic late payment. In the nuisance case, the goal is to obtain the termination of the lease and tenancy. In order to prevail in this case, similar to the breach of the substantial obligation of tenancy case, an owner must be able to prove to the court the prior rent defaults, prior court cases resulting in unabated judgments and that there were no rent impairing conditions in the apartment during the relevant period of time. Additionally, as a result of the 1997 Court of Appeal’s decision, an owner is required to prove that the chronic rent defaults interfered with the owner’s use and enjoyment of its property combined with aggravating circumstances, in order to prevail in this type of nuisance case. You do not need a notice to cure, since the default is ongoing and is not curable.

Customer: replied 4 months ago.

Do you have the citing of that case? I am not sure of what you mean by "interfered with the owner’s use and enjoyment of its property combined with aggravating circumstances, in order to prevail in this type of nuisance case"

I do not live on the premises. I am just tired of going to court with non payments and the tenant getting OSC after OSC and not paying then finally after marshal has final order tenant pays. There were four of these over 1.5 years and one holdover which was dropped and changed to a non pay.

Expert:  Loren replied 4 months ago.

Here is a link to Sharp vs Norwood:

By paying late and interfering with you right to derive income from the property, they are interfering with your use and enjoyment of the property committing the nuisance.

Customer: replied 4 months ago.

Thank you for the citing. I read both cases "Sharp v. Norwood" and "Carol Mgt. Corp. v. Mendoza" each referencing 9 NYCRR 2204.2[a][1] & 9 NYCRR 2524.3 respectively.

1) These citings refer to rent stabilization laws. Furthermore there is reference to 9 NYCRR § 2524.3 requiring a 10 day cure period. This is a cooperative with free market rents. I do not know if I can rely upon RSL in a free market rent case to a) not send notice to cure, and b) rely upon the citings when they specifically talk to RSL

2) "While these facts might have supported an eviction proceeding on the ground that respondent violated a “substantial obligation” of her tenancy, petitioners did not assert this ground in their holdover petition (see, 9 NYCRR 2204.2[a][1];  Carol Mgt. Corp. v. Mendoza, 197 A.D.2d 687, 602 N.Y.S.2d 941).   Having opted to pursue their remedy in the context of a nuisance case, petitioners were required to establish that respondent's conduct “interfere[d] with the use or enjoyment” of their property (see, e.g., Copart Indus. v. Consolidated Edison Co., 41 N.Y.2d 564, 568, 394 N.Y.S.2d 169, 362 N.E.2d 968).   Petitioners failed, however, to offer any evidence on this issue.   Therefore, the holdover petition was properly dismissed on the merits for lack of proof."

Is there specific language that I must have in my Petition and Notice of Petition to clarify that respondent's conduct “interfere[d] with the use or enjoyment” of their property" regarding the chronic late and non payment?

Expert:  Loren replied 4 months ago.

I have to step away. I will opt out so another expert can assist you. Do not respond to this message as it will kick the thread back to me and delay another expert responding.

Expert:  CalAttorney2 replied 4 months ago.

Dear Customer,

Thank you for using our forum. My name is ***** ***** I hope to assist you today.

I have reviewed your prior conversation, and the case law that was provided by the prior expert is both on point and helpful.

I would suggest a slight difference in approach however.

In non-payment cases, it is almost always easier to make a 10 day notice to pay or quit as opposed to trying to force a "notice to quit" based on the fact that the tenant has repeatedly failed to pay.

The problem here is that if you force the issue and wind up in court disputing whether or not 3 times is enough to constitute a non-curable breach, or if the court is going to rule that you needed to wait for your tenant to breach more times, it is simply going to cost you more money than you have already invested in the problem.

On the other hand, if you simply give notice to pay or quit and the tenant pays, you get your money with the delay.

If they do not pay, move promptly to a forcible entry and detainer, DO NOT ACCEPT RENT AFTER THIS PERIOD, hire a lawyer to do this for you (I do not recommend that you do this on your own, although you absolutely can if you decide to do so). In the eviction action you would then utilize the case law cited by the prior expert, show that the tenant has repeatedly, and the court should order the eviction (legally there is no other option for the court).

So, while it may be frustrating to "give the tenant one more chance", strategically you are building a stronger case towards your eventual eviction action (you say you have had to do this 3 times in the past, you will want to build as strong a case as possible for a fourth and final one).

Customer: replied 4 months ago.

So you are saying do the non pay vs the holdover because of the possibility of the case being dismissed for failure to meet the threshold of a "chronic nonpay/lat pay".

I have seen where the courts allow you to start out as a holdover and reduce it to a non pay if the only issue is just rent.

Expert:  CalAttorney2 replied 4 months ago.
Dear customer, that is a strategy call that can be made after giving notice.
My initial suggestion regarding giving notice to pay is what happens before you file.
Customer: replied 3 months ago.

Yes I understand that but my initial questioning was along the line of predicate documents for a chronic non pay tenant. You have interjected a strategy call without the clarising my questions on the need for a notice to cure what seems to be incurable. I replied to the initial attorney stating that I read the case citing but that the issues were related to RSL and that this distinguished itself from the fact that my case involves free market rental of a cooperative. I then started to search myself for answers and found that the true determinate of the chronic non pay issue deals with weather it is a substantial breach of lease which is curable, or is a nuisance case, and there are several factual issues that need to be taken into account, as well as the wording of the lease, and any predicate documents served.

I am always looking for a well thought out answer based upon the question...then alternatives are appreciated but until I get my answer to the initial question I asked it seems inappropriate to offer alternatives because I do not have the answer to the root question that I can then make a reasoned decision as to my election of remedies.

Expert:  CalAttorney2 replied 3 months ago.

Dear Customer,

I would suggest pricing your questions significantly above the minimum question value if you are asking attorneys to provide you with research to tell you what we already know based on our experience (what most customers are paying for when they visit JustAnswer).

You are also asking for an expert to provide you with a definitive answer based on your fact pattern, that simply isn't something we can offer here (you need a local attorney to provide you with a formal legal opinion). Again, I provided you with the best answer based on experience here to help you avoid a negative outcome in your case (unnecessarily increased costs and fees caused by giving a "notice to quit" without the opportunity to cure, which judges almost universally reject for a simply non-payment (regardless of the merits)).

You have had 2 experts give you well thought out answers - one did the additional step of providing you with some case law research for you. But you are still looking for something more for what amounts to $10 compensation for us. I would suggest that you consider retaining a local attorney to help you with your matter.

I am going to "opt out" and allow another expert to assist you.

Expert:  Law Educator, Esq. replied 3 months ago.

Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

I am a DIFFERENT CONTRIBUTOR and the information you have received from the previous contributors is correct. However, you keep saying some question you had was not answered. Please tell me what specific question it was that was not answered and I would be happy to answer that specific part of the question for you. Thank you very much and I am sorry that it has taken so long to get through this with you.

Customer: replied 3 months ago.

The question started on the need for a 10 day notice to cure for a chronic non pay. I was given an answer w I th supporting case law. That is good. Then I read the case law and saw that the decision of the case was to a large extent based upon RSL. I am not dealing with rent stabilized housing so I asked that same attorney about that issue as it pertains to my circumstances. He opted out. That is what created the next responses which did not go to my question but rather to alternatives without first answering the question. I also followed the reasoning of the second contributor, and asked about tge possibility of moving on a holdover but then reducing it to a non pay if the court indicates a concern about the holdover still just being a nonpayment under the covers. In that instance i thought i best serve the 10 day notice so that no jurisdictional issue is raised if the case is changed to a nonpayment. I did further research myself and found some information regarding my question that may explain the need or lack of need for the ten day notice.

I was just hoping to get the initial question broached before alternatives are given.

Expert:  Law Educator, Esq. replied 3 months ago.

Thank you for your reply.

Quite honestly, you do not need to give the 10 day notice to cure if he has been a habitual late pay and you have given previous notices before, but most attorneys will err on the side of caution and send one if they plan on pursuing the eviction for breach of lease and not based on being a holdover.

However, the suit for eviction can be filed for BOTH habitual non-payment/late payment and also for being a holdover tenant. So you can proceed straight to court against them to get them out.

Customer: replied 3 months ago.

The law seems to be for either in NY you must file for a holdover. So are you saying I should file for two holdover(s )? Both are considered holdovers. .one as a nuisance which I believe is the one that does not need the 10 day notice just he notice to terminate, the other requires a 10 day notice but is based upon a "substantial breach of lease"

Expert:  Law Educator, Esq. replied 3 months ago.

Thank you for your reply.

I would file for the nuisance since no notice is required and you can be done with it UNLESS you believe that the tenant will just leave if you tell them to do so. It does not sound like they will, so going the nuisance route is best to just get it done with.

Customer: replied 3 months ago.

1) From reading some cases I would not put in the notice to terminate "a substantial part of lease" because that would trigger the 10 day notice to cure. Is that right?

2) Also is there a problem with ..if the court does not hold that this qualifies as a "nuisance" and then the lack of the 10 day notice would create a bar to reducing the pleading to a nonpayment without refiling..Is that correct?

Expert:  Law Educator, Esq. replied 3 months ago.

Thank you for your reply.

1) Yes that is correct, you would not use the substantial breach.

2) It does qualify as a nuisance, but in the unlikely event the court finds it does not, it absolutely does not preclude you from refiling, but you would have to refile.

This is why I said above that most attorneys would send the notice and cover all bases at one time.

Customer: replied 3 months ago.

However if I file as a substantial breach holdover "flavor" with the ten day notice to cure siting the chronic non pay then the case could be reduced to a non pay as the respondent would have been given a notice to cure the behavior akin to a rent demand notice. Is this thinking correct?

So that the filing as a nuisance precludes reduction within the same index number while the substantial breach does not?

Therefore should the court hold that it is not a nuisance but rather a substantial breach the case would be dismissed with no way to reduce to a non pay?

Expert:  Law Educator, Esq. replied 3 months ago.

Thank you for your reply.

Actually, chronic non-payment is good cause for eviction without giving them a chance to cure the chronic non-payment. This is more than a single non-payment issue it is repeated late payment. You have given them previous notice about non-payment, so you would gather all of those as proof of notice to show this is a chronic or repeated issue for which there is no cure, which is why that is considered good cause for eviction, which is what the case law said above from the other experts constituting a nuisance.

You can file ONE action with multiple theories or grounds for your suit. However, I would go with the chronic non-payment as the courts hold that is good cause for the eviction and you do not have to give them notice as there is no cure for a habitual deadbeat.

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