October 1, 2014: This post originally appeared on the LandlordsNY blog, where Michelle Maratto Itkowitz is the "Legal Expert".
Hi, Michelle here. I am the LandlordsNY “Legal Expert”. My goal is to post in the LandlordsNY blog most of the questions I get from LandlordsNY members (keeping the member anonymous) and my answers thereto, when I think that such questions and answers would be of interest to other people. Let me know if this is helpful.
Question: I signed a lease with my tenant, but accidentally left off the address of the property. The only items that the lease has are names and signatures. Now the tenant says she will not pay rent because she thinks she doesn’t have to? What should I do?
Answer: The short answer is that the lease is possibly not valid if it does not identify the apartment, but that does NOT give the tenant the ability to remain there rent-free; The lack of a properly filled out lease does, however, create some problems for you.
A valid lease must include essential terms. To insure that a tenancy is formed, the agreement should minimally confer exclusive possession and control, identify the landlord and the tenant, describe the premises being demised, list the rent sought and delineate a specific-occupancy term. See Davis v. Dinkins, 206 A.D.2d 365 (2d Dep't 1994) (Since the area and the term of the lease were not discernible by objective means, no lease was created). My guess is that it could go either way in Housing Court – the judge might determine that the premises IS discernable, by the fact that the tenant is living in the particular apartment. Then again, the lack of an apartment number or address in the lease could very likely be fatal to the lease becoming an enforceable document. I would need to know more details.
Even without a written lease, however, if the tenant has moved into the apartment and started paying rent in a regular amount and at regular intervals (for example $1,000.00 per month every month), then a month-to-month landlord and tenant relationship has been created, it just is not governed by an existing lease. An occupancy which spans from month-to-month predicated upon the payment of a monthly rental is usually a tenancy from month-to-month. Gerolemou v. Soliz, 184 Misc. 2d 579, (App. Term 2nd dept. 2000) (“In the absence of contravening proof, the law presumes that where there is a general letting with a monthly rent reserved, an indefinite month-to-month tenancy is created.”)
Therefore, you can still sue the tenant for the monthly rent that you agreed upon and/or for possession of the apartment back. The problem is that there are a ton of things in the standard written lease that protect the landlord, and without a written lease, you don’t have things like the waiver of trial by jury. If your tenant gets a clever lawyer they can slip a jury demand into your routine landlord and tenant case and hold it up for weeks and cost you a fortune in legal fees while your lawyer picks a jury. This is not likely to happen, but it is an example of how a lease protects a landlord in a fundamental way.
Labels: Residential Landlord and Tenant