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barristerinky
barristerinky, Attorney
Category: Landlord-Tenant
Satisfied Customers: 38228
Experience:  Attorney over 17 years, landlord 26 years
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How to handle Tenants Lease Abandonement in New York State.

Customer Question

How to handle Tenants Lease Abandonement in New York State.
Is there New York Statue if not on Rental Lease ?
How about the abandoned property of three months without consent of landlord but tenant notified Landlord by phone, due to fear of retaliation from criminal fight with neighbor.
How to dispose abandoned property in NY?
Entering and changing locks?
How and when?
Submitted: 1 year ago.
Category: Landlord-Tenant
Customer: replied 1 year ago.
Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Customer: replied 1 year ago.
1. In New York State- In giving Notice of Property Abandonment- can a process server with affidavit of service to the property leave the Notice posted at the door also admissible in court, instead of mailing?
How about Notice of Lease Abandonment?
Expert:  barristerinky replied 1 year ago.

Hello and welcome! My name is ***** ***** I will try my level best to help with your situation or get you to someone who can.

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Does your lease have anything in it related to abandoned property?

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Does the personal property have considerable value?

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Have you sent any notice to the tenant regarding the abandoned property?

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thanks

Barrister

Customer: replied 1 year ago.
I will communicate later. Please. Thanks
Expert:  barristerinky replied 1 year ago.

No worries, the question will remain open as long as you need it to..

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thanks

Barrister

Customer: replied 1 year ago.
1. My lease did not include abandonment of lease or abandonment of property.
2. The property abandoned has no value except prob DVDs and CDs and about 5 sealed boxes. There are cheap Clothes. Furniture,cheap and used. Cheap mattresses and one old not HDTV. This family is poor on government subsidy for 70% of The rent.3.i did not send a notice by mail. But I posted on the door and no response.
Expert:  barristerinky replied 1 year ago.

Ok, NY has no set statutory written laws that address this and set out a fixed process, but there are a couple things that I would suggest that you do to protect yourself from any claim by the tenant.

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First off, if this is just junk, you can simply dispose of it in the trash. But if there are things that have value, I would suggest inventorying it, then store anything that has value in a storage facility like you have done. Then I would send a written letter both regular mail and certified mail to the rental address stating that the personal property that was left will be disposed of in 30 days as abandoned if it is not reclaimed by paying any storage fees.

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Then after 30 days, if they don't contact you to reclaim the property and pay the storage fees, you are free to sell, donate, or otherwise dispose of it and would be protected under the law as you gave them an opportunity to recover their property before disposing of it.

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As an aside, in addition to being an attorney, I have also been a landlord for over 26 years...

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thanks

Barrister

Customer: replied 1 year ago.
The police just called me now. Tenant reported I changed the lock and wants me to give him the key. Hell no. I told the police its abandonment and not locked out. And they just have to take me to court. What do you think I should do.
Customer: replied 1 year ago.
I have to talk to you. But I don't have enough on my account right now.
Btw, is it legal in New York State to changed lock after they abandoned place in 3 mos and putting their things in storage.. With just posting a notice of abandonment on their apt door.
Customer: replied 1 year ago.
I have someone notarized an affidavit of service in posting the notice on the door.
Expert:  barristerinky replied 1 year ago.

If the tenant wants to make this an issue of this, then it is strictly a civil matter and the tenant will have to take it up in civil court. The police only get involved with criminal matters..

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So I would just tell him to take it up in court if he wanted to make an issue of it.

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thanks

Barrister

Customer: replied 1 year ago.
1.I still want to know the legality of that 30 days abandonment in state of ny, one landlord told me that I can do what I did after 30 days.
2. Also., is posting a note on his door and him telling me they are moving out 3 months ago, acceptable in notice of abandonment.
Expert:  barristerinky replied 1 year ago.

As I mentioned earlier, there is no NY statute that addresses this for some reason. So the way that most landlords handle this is with a 30 day notice of abandonment before disposing of any abandoned property. The courts would look at this from the perspective that if someone didn't seek out their property within a month, then that is a pretty good indication that they have abandoned it.

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But for future reference, I would add a clause to your lease that presumes abandonment automatically if they are gone over 30 days and haven't paid rent..

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And yes, if you post it on the door and take a photo of the notice as well as keeping a copy, that is good proof that you attempted to give them an opportunity to retrieve their property prior to disposing of it as abandoned. Him telling you he is moving out doesn't help much unless you have proof of that in something like an email, text or voicemail.

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thanks

Barrister

Customer: replied 1 year ago.
The police broke into the apt per neighbor. They don't even know the truth. Can they do that. I told police to just let him take me to court. But they still broke in.
Expert:  barristerinky replied 1 year ago.

If the police broke in, then you can sue the police dept for any damages that they caused since the tenant has abandoned the property and this is not an illegal lockout, but rather you just retaking possession of an abandoned unit.

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The police likely called the local housing court to see if you got a formal eviction against the tenant and if not, they decided it was an illegal lockout and decided to take action to gain entry. This is legal for them to do in NY if there is an illegal lockout. (Section #241-12 of the Patrolman's Guide.)

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It does seem kind of odd though that all this is happening right now after 3 months of the tenant being gone...

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If you feel your original question and any related follow ups have been answered, I would very much appreciate a positive rating on the answer I have provided so I receive credit for my work. If you have a new question the JustAnswer folks require that you start a new question page, but you can request me by putting "For Barrister" in the caption and they will get it to me.

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thanks

Barrister

Customer: replied 1 year ago.
I still want to know if it's illegal for me to broke in abandoned apt for 3 mos and took property to storage and changed the lock. So what do I do now. Change the lock again. He might move in when he receive letter of notice of property location
Customer: replied 1 year ago.
Am I suppose to give the tenant a notice before I changed the apt lock and put his belongings in storage.. If so what do you call that notice. I took his statement before that he does not want to live in that house anymore that's why I did not send any notice or letter.
Expert:  barristerinky replied 1 year ago.

I don't understand what you mean by " if it's illegal for me to broke in abandoned apt for 3 mos"".... you are the owner so you can't break into your own property... you just retook possession after a presumed abandonment..

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But what you should have done is just go ahead and evict the tenant when they got behind on the rent and then you could have legally disposed of everything without any question.

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So at this point, if he has retaken possession and is claiming an illegal eviction, then I would go ahead and post a 3 day notice to pay everything that is owed for back rent and then go through a formal eviction. I would definitely contact the tenant and tell them that they can make arrangements to get their personal property out of storage so that mitigates any claim that they might try to make for personal property.

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If the tenant tries to claim there was an illegal lockout, then you can just respond by showing that they haven't paid rent for 3 months and told you that they were leaving.

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So you really shouldn't cut corners and try to avoid going through a formal eviction because it can end up with problems like this. Set up a fixed process and then follow it every time a tenant gets behind on rent. I tell tenants that this is just a business and I have to run it like one, so I follow a set process with every tenant...

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thanks

Barrister