LAW FIRM BLOG
New York’s Revamped Landlord-Tenant Law
May 28, 2021
On June 14, 2019, Governor Andrew Cuomo signed into law a sweeping package of statewide regulations known as the "Housing Stability and Tenant Protection Act of 2019" (HSTPA), initiating the largest set of changes to Landlord-Tenant law and practice in New York in nearly a century. HSTPA dramatically modifies and expands the fundamentals of existing rental regulations and procedures in both the legal and business environment of the New York real estate market. Importantly, it also alters how landlords and tenants will interact statewide, including major changes to both the rental as well as the eviction process.
Moreover, HSTPA enacts changes to the statutes governing all rental units, regardless of rent regulated or stabilization status, as well as free-market housing, including coops, condominiums and townhouses. HSTPA makes no distinction between tenants in a traditional landlord-tenant relationship and shareholder lessees of apartments in which they have an ownership interest.
Most provisions of the HSTPA became effective immediately, with a 30-day implementation grace period. Other changes took effect over the summer and fall of 2019. This blog details these new laws and provides a guide for navigating their rules and regulations.
1. Non-Retaliation Against Tenant
Under the new law, a rebuttable presumption that the landlord is acting in retaliation is now created if the tenant establishes that the landlord served a notice to quit, initiated a proceeding to recover possession of the premises, or attempted to “substantially alter” the terms of the tenancy (such as an “unreasonable” rent increase), within one year (formerly six months) after a “good faith” complaint was made, by the tenant, to the landlord, the landlord's agent (e.g., property managers) or a governmental authority of the landlord's violation of any health or safety law, regulation, code, or ordinance, the warranty of habitability, or the duty to repair, allowing the tenant to recover possession of the premises. The rebuttable presumption in favor of retaliation now applies even in actions based upon violation by the tenant of terms and conditions of lease, including non-payment of rent.
Once a tenant raises a retaliatory-eviction claim, the landlord has the burden of establishing a non-retaliatory motive for an eviction proceeding or rent raise. The prior law required simply that the landlord provide a “credible explanation.” A landlord that fails to rebut the presumption of retaliation can be required to offer a new lease or lease renewal of up to a year with only a “reasonable” rent increase and the tenant recover possession of the premises. Additionally, a landlord can be liable for attorney fees and costs, as well as civil damages if the tenant seeks recourse in a civil action for unlawful eviction in violation of these sections. [RPL §223-b(3)]
2. Notice of Non-Renewal or Rent Increase
Under current and prior law, New York City tenants are not required to provide written notice before vacating. Outside NYC, prior to HSTPA, tenants and landlords of a month-to-month tenancy were both required to provide 30 days notice of non-renewal of lease. Effective October 22, 2019, month-to-month tenants are still only required to provide 30 days notice of non-renewal, regardless of length of occupancy (the notice need not be in writing), and a tenant who decides not to renew at the end of a fixed term lease need not give any notice. [RPL § 232-b]
But under the new rent laws, residential landlords must now adhere to stricter notice requirements for market-rate leases. Whenever a landlord intends to not renew a lease or offer to renew the tenancy of an occupant in a residential dwelling unit (rent stablized or fair market) with a rent increase equal to or greater than 5% above the current rent, or the landlord does not intend to renew the tenancy, the landlord shall provide written notice, by process server, as required by the length of the tenancy:
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.
If the landlord fails to provide proper timely notice, the occupant's lawful tenancy shall continue under the same existing terms of the rental agreement from the date on which the landlord gave actual proper written notice until the notice period has expired and the required timeframe has lapsed, notwithstanding any provision of a lease to the contrary. The required notice period must pass before the rent increase or non-renewal of tenancy takes effect. [RPL § 226-c]
3. Residential Landlord Duty to Mitigate Damages
In any non-comericial rental agreement, if a tenant vacates a premises in violation of the scheduled expiration terms of the lease, the landlord shall have an affirmative duty to mitigate damages, that is, in good faith and according to the landlord’s resources and abilities, take “reasonable and customary actions” to re-rent the premises at fair market value or at the rate agreed to during the term of the past tenancy, whichever is lower, and a landlord is only allowed to recover lost rent during the vacant period if the unit was re-rented at fair market value or the past tenant’s rent amount, whichever is lower. If the landlord chooses to increase rents at this time, the landlord forfeits any right to recover lost rents during the vacancy period.
A landlord formerly had no obligation to take any action to relet when a tenant vacated an apartment in advance of the previously agreed upon lease-expiration date. The lessor was permitted to leave the apartment vacant for the remainder of the lease, all while the lessee was liable for rent through the end of the term (even if the space wasn’t being used or occupied).
A lease with a new tenant will extinguish the former occupant’s lease and liability for any additional rent payments and the former tenant will only be responsible for rent while the apartment was vacant. The burden of proof on this matter is on the landlord and any lease provision to the contrary is void. [RPL § 227-e]
4. No Screening for Prior Evictions (Blacklists Banned)
No landlord of a residential premises shall refuse to offer a lease to a potential tenant on the basis that the potential tenant was involved in a past or pending landlord-tenant action or summary proceeding. There shall be a rebuttable presumption that a person is in violation of this section if it is established that he or she requested information from a tenant-screening bureau, (including their websites), relating to a potential tenant or inspected court records relating to such potential tenant and the person subsequently refuses to rent to the potential tenant. The landlord has the burden to provide an alternative reason for rejecting a tenancy.
Blacklists are lists of tenants named as respondents in Housing Court litigation. Landlords have used the lists to screen potential applicants. These lists were often misleading; they provided minimal information about the proceeding or its outcome, including whether the tenant essentially prevailed or had a legitimate basis for litigating. Tenant advocates found these blacklists disturbing because they came from data compiled and sold by the Unified Court System (UCS).
HSTPA now also forbids the UCS from selling residential tenancy and eviction data. Court records relating to evictions will now be sealed, deemed confidential and not made public. This is effective as of July 14, 2019. [RPAPL §757]
New York’s Attorney General has enforcement powers, and using a blacklist carries civil penalties of between $500 and $1,000 per violation. [RPL § 227-f] However, no private cause of action is available. Note that an eviction judgment can affect a credit report and tenants can still be denied housing based on poor credit.][RPL §227-f Effective July 14, 2019]
5. No Recovery of Attorney's Fees in Default Judgment
A landlord may not recover attorneys' fees in the case of a default judgment. That is, if a tenant fails to appear in court at the appointed time for an eviction hearing and a default judgment is made in the landlord's favor, the landlord may not attempt to recover any attorney's fees. [RPL § 234]
6. Receipts Must Be Provided For Rent
Upon the receipt of the payment of rent for residential premises in the form of cash, or any instrument other than the personal check of the lessee, it shall be the duty of the landlord, or any agent of the landlord authorized to receive rent, to provide the tenant with an immediate written receipt containing: 1. The date; 2. The amount paid; 3. The identity of the premises and period for which paid; and 4. The signature and title of the person receiving the rent. A lessee may request, in writing, that a lessor provide a receipt for rent paid by personal check.
Once a tenancy is in effect, a tenant who demands rent receipts must get them. If the payment is made personally, the receipt must be given immediately. If the rent is paid in another manner, it must be provided within 15 days. Once demanded, the obligation to provide receipts continues for the duration of the tenancy. Landlords must maintain records of cash payments for three years. [RPL § 235-e]
7. Late Rent Notices to be Sent By Certified Mail
If a landlord, or their agent, fails to receive rent within five days of the date specified in a lease agreement, such landlord or agent shall send the lessee, residential or commericial, by certified mail, a written notice stating the failure to receive such rent payment. Emails or texts are not sufficient, even if acknowledged by the tenant. The five-day notice simply informs the tenant that the rent is late.
Failure to send such written notice is an affirmative defense to an eviction proceeding for nonpayment of rent. Previously, if a tenant missed a rent payment, they were sent a three-day notice of late payment. If the landlord fails to serve this reminder notice as required before commencing a nonpayment proceeding, the tenant may raise as an affirmative defense in a summary proceeding the failure of the landlord to give notice by certified mail. [RPL § 235-e]
Proof of certified mailing of five-day notice of non-payment of rent must be attached to the Notice of Petition and Petition if a summary proceeding is initiated.
8. Limitation on Application Processing Fees
When applying for a new apartment, one often must complete an application, which usually has a fee attached to it and a background and/or credit check. In the past, landlords had wide latitude to set such fees at whatever rates they wished. Effective mid-June of 2019, a landlord, lessor, sub-lessor or grantor may only charge application fees for processing, review (such as contacting references or verifying employment) or acceptance of an application to lease residential property, to a prospective tenant at the cost associated with conducting such checks, provided the cumulative fee or fees is no more than the actual cost of the background check and/or credit check or twenty dollars, whichever is less.
Additionally, landlords may only collect that fee upon providing the applicant with a copy of the results of that inquiry, together with a copy of a receipt or invoice showing the cost of the report, and must waive this charge if the tenant can provide copies of a credit and background check conducted within a thirty day period prior to the application. Any provision of a lease or contract modifying or waiving this protection is void. [RPL § 238-a(1)(b), RPL § 238(a)(3)]
This provision does not apply to certain categories of retirement communities, adult care facilities, and facilities run by not-for-profit organizations.
9. Limitation on Late Fees
Residential landlords also once had considerable discretion to set late fees and other lease-breach penalties at whatever rates they chose. That, too, is no longer so. For all apartments, RPL 238-a limits fees that can be sought in a summary proceeding except if provided by regulation or statute. No landlord, lessor, sub-lessor or grantor may demand any payment, fee, or charge for the late payment of rent unless the payment of rent has not been made within five days of the date it was due, and such payment, fee, or charge shall not exceed fifty dollars or five percent of the monthly rent, whichever is less. Any lease provision modifying or waiving this statutory protection is void. [RPL § 238-a(2)]
[RPL§ 238-a(3) -. These provisions do not apply to most retirement, continuing care or not-for-profit communities.
10. Only Base Rent May be Sought in Eviction Proceedings
For all apartments, rent regulated or not, a landlord can no longer collect any fees or charges due in a eviction proceeding relating to a residential dwelling and may only seek to recover the base rent amount. The term "rent" is defined narrowly to mean the monthly or weekly amount charged 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, notwithstanding any language to the contrary in any lease. [RPAPL § 702]
11. Pay-Or-Quit Notice Time Extended
HSTPA has similarly expanded time periods in nonpayment proceedings. A special or summary proceeding may be commenced, by the landlord, if the tenant, commerical or residential, has defaulted in the payment of rent, pursuant to the terms of the lease and a written demand of the rent has been made with at least fourteen days’ notice requiring, in the alternative, the payment of the rent, or the possession of the premises, has been served upon him.
In the past, the first step of the eviction process was to formally deliver a notice to a tenant that rent was late in the form of a 3-Day Notice, notifying the tenant orally or in writing that they had three days to either pay rent in full or vacate the premises (although an oral demand did not have to give three days), or the landlord would proceed with the eviction process.
Now, under the new RPAPL § 711, there must be a written demand for rent with at least 14 days’ notice, giving more time to the tenant in possession. Oral demands are abolished. However, this rule still only applies where there is a landlord-tenant relationship (typically meaning a lease with the tenant). Rules governing service of a 10-day notice to quit where there is no lease or other landlord-tenant relationship have not changed.
§735 requires service in the same way as official court papers by any of the following methods:
• personal delivery,
• delivery to a person of suitable age followed by certified mailing,
• affixing to the door of the residence followed by certified mailing.
This requirement can no longer be waived in writing.
12. Rent Paid in Full During Eviction Nullifies Eviction
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 date on the petition, shall be accepted by the landlord and renders moot the grounds on which the special proceeding was commenced.
In the past, if a tenant still failed to pay rent after their grace period and 3-day notice had been delivered and expired, the eviction process began and the landlord was not obligated to accept rent and could continue with eviction even if the tenant offered to pay rent in full. Under the new law, if a tenant provides payment in full of rent proceeds at any time during the eviction process, the landlord is forced to accept the payment, the eviction is dismissed and the landlord's expenses throughout the eviction are irrecoverable.
Additionally, in a judgment for non-payment of rent, the court must now vacate a warrant of eviction upon the tender or deposit with the court of the full amount of rent due at any time prior to the warrant’s execution, unless it is shown by the landlord that the tenant withheld the rent in “bad faith.” [RPAPL §731(4) - RPAPL §731]
13. Tenant Response Time to Notice of Petition Extended.
The Notice of Petition for a proceeding to recover possession for real property in a non-payment proceeding shall be returnable before the clerk, and shall be made returnable within ten days after its service.
RPAPL § 732 has also been amended to increase from five to ten days the time tenants have to answer a Notice of Petition in a nonpayment proceeding. And if the tenant defaults in answering, the court still has the discretion to stay issuance of the warrant for five days, further postponing eviction proceedings.
In all other proceedings, the Notice of Petition shall be served between ten and seventeen days before the date the petition is noticed (increased from five to twelve days).
14. Delivery of Warrant Response Time Extended
RPAPL § 749 now gives tenants additional time to relocate before an eviction and more time to file an order to show cause to stay an eviction. If the court rules in favor of the landlord, the presiding judge can issue a Warrant of Eviction. This is a formal court order that gives the Marshal the authority to remove the tenant and their belongings. The officer to whom the warrant is directed and delivered shall give at least fourteen days’ notice (an increase from 72 hours), in writing for the service of a notice of petition, to the person or persons to be evicted and shall execute the warrant on a business day between the hours of sunrise and sunset. A Warrant of Eviction must also now state the earliest date upon which execution may occur, in addition to a description of the property and names of the persons to be removed.
15. Evictions Can Be Delayed Up to 12 Months Due to Hardship
In a proceeding to recover the possession of premises, the court, on application of the occupant, may stay the issuance of a warrant and also stay any execution to collect the costs of the proceeding, for a period of not more than one year (previously six months), if it appears that the premises are used for dwelling purposes; that the application is made in good faith; that the applicant (or applicant's family or other occupants) cannot within the neighborhood secure suitable premises similar to those occupied by the applicant and that the applicant made due and reasonable efforts to secure such other premises, or that by reason of other facts it would occasion extreme hardship to the applicant or the applicant's family if the stay were not granted.
In determining whether refusal to grant of a stay of execution would occasion extreme hardship, the court shall consider expanded circumstances and must judge how this process affects an evictee more holistically, considering factors such as serious ill health, significant exacerbation of an ongoing condition, a child’s enrollment in a local school, and any other extenuating life circumstances affecting the ability of the applicant or the applicant’s family to relocate and maintain quality of life [RPAPL §753]. The court shall also consider any substantial hardship the stay may impose on the landlord in determining whether to grant the stay or in setting the length or other terms of the stay [RPAPL §753(2)].
This provision does not apply to holdovers that the landlord can show “by competent evidence” are objectionable.
Under prior law, if a landlord won a holdover proceeding based on a lease breach against a New York City residential tenant, the tenant had an automatic stay for 10 days under RPAPL § 753 to cure the breach. The courts were also empowered to stay the issuance of the warrant for up to six months. HSTPA revised RPAPL § 753 to expand to 30 days the automatic post-trial period on breach-of-lease holdovers. It also doubled the length of the discretionary stay to one year and made it available for nonpayment proceedings across the entire New York State.
Stay shall be granted upon the condition that the person against whom the judgment is entered shall make a deposit in court of the entire amount or installments for occupation of the premises at the rate for which the applicant was liable for rent for the month immediately prior to the expiration of the applicant’s term or tenancy plus such additional amount as the court shall deem the difference is between the rent and the reasonable value of the property. [RPAPL §753(2)]
16. No Collection of Double Deposit or Last Month’s Rent
No security deposit or advance shall exceed the amount of one month's rent. The practice of requiring pre-paid rent, typically as the “first and last months’ rent,” is prohibited. Landlords can not collect a security deposit of more than one month’s rent for all types of residential dwellings (e.g., including one- to four-family residences). [G.O.L . § 7-108 ]
Riders or separate agreements that do not comply with the new laws are not enforceable.
If a landlord has collected more security than one month prior to the law going into effect the landlord must return the additional security at lease renewal.
17. Tenant May Require Landlord to Conduct Multiple Move-In/Out Inspections
After initial lease signing but before the tenant begins occupancy, the landlord shall offer the tenant the opportunity to inspect the premises with the landlord or the landlord's agent to document the condition of the property. If the tenant requests such inspection, the parties shall execute a written agreement before the tenant begins occupancy attesting to the condition of the unit and specifically noting any existing defects or damages. This document is to be signed by both the tenant and the property owner. Upon vacating the property, the landlord may not make a claim for or deduct from the deposit, any repair costs that are associated with those delineated items. [G.O.L § 7-108 (1-a)(e)]
Shortly after the tenant indicates they are planning to vacate, unless the tenant terminates the tenancy with less than two weeks’ notice, the landlord must give a written notice within a reasonable time of a tenants’ right to another inspection. If the tenant asks for such inspection, the landlord must then provide at least a 48-hour written notice with information about the date and time to accompany the landlord (or their agent) on an inspection. It must be conducted no earlier than two weeks and no later than one week before the end of the tenancy.
After the inspection, the landlord shall provide the tenant with an itemized statement specifying the damages (such as, repairs, cleaning or storing tenant belongings) that are proposed to be the basis of any deductions from the tenant’s deposit. The list cannot include damages related to normal wear and tear. The tenant must also be afforded the opportunity to correct or “cure” any issue discovered during the inspection before the end of the tenancy. Anything on the list that the tenant doesn’t fix can be deducted from their security deposit. Within 14 days of move-out, the landlord must return the balance of the security deposit. The landlord must be able to justify keeping all or part of the security deposit and must provide an itemized statement (or second statement, if earlier inspection was done) specifying the basis for any deductions from tenant’s deposit and return the remainder of the deposit. [G.O.L § 7-108 (1-a)(c)]
Failure to comply with the required procedure forfeits any right to retain any portion of the deposit, and makes the landlord liable for damages, including punitive damages up to twice the value of the deposit for any violation. The landlord bears the burden of proving deductions are reasonable. [GOL §7-108 Effective July 14, 2019
18. Security Deposits Must Be Returned Within 14 Days
Under the former law, landlords were required to return a security deposit within a “reasonable time,” meaning a month or two following a tenant vacating. Many abused that privilege keeping some former tenants waiting for six months or more. The law now provides that if any portion of the security deposit is retained, the landlord must provide (i) an itemized statement of the claimed conditions detailing any deductions that were made from the security deposit (such as for necessary repairs and cleaning costs) within 14 days after the tenant vacates and (ii) any remaining portion of the deposit. If a landlord fails to provide the tenant with the statement and deposit within fourteen days, the landlord shall forfeit any right to retain any portion of the deposit. [G.O.L § 7-108 (1-a)(a), G.O.L § 7-108 (1-a)(e)]
Noncompliance with these security deposit procedures can subject a landlord to liability for the former tenant’s actual damages. And, if the landlord is found to have willfully violated the law, punitive damages, which may be assessed to twice the amount of the deposit, may be awarded for any willful violation of its provisions. [G.O.L § 7-108 (1-a)(g)]
The new law also narrows what may be withheld from the deposit to include “reasonable” costs due to nonpayment of rent or utility charges, damage beyond ordinary wear and tear, and moving and storage of the tenant’s belongings. Notably excluded are additional rents such as legal and late fees. Landlords have the burden of proof to justify their retention of a security deposit for damages.
19. Unlawful Eviction
It is unlawful to evict or attempt to evict a tenant who has occupied a dwelling for at least thirty consecutive days or entered into a lease agreement except through a Warrant of Eviction or other court/governmental order.
Unlawful eviction includes (1) the threat or use of force; (2) interfering with the use and occupancy of the property to induce the tenant to vacate, including cutting essential services (i.e. turning off utilities); or (3) engaging in or threatening other conduct to prevent lawful occupancy (removing possessions, changing locks, removing doors, etc.).
Under the previous law, extreme and illegal measures to remove people from their property carried civil penalties that did not effectively discourage these behaviors. To increase landlords’ compliance with HSTPA, intentionally violating this provision or assisting someone in dong so is now a Class A misdemeanor, punishable by civil penalties (fines) of between $1,000 and $10,000, plus a daily fine a $100 for each day the tenant is not restored to possession, as the occupant(s) must be if an unlawful eviction occurred. [RPAPL § 768]