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Evicting a Fired Superintendent

January 4, 2016:  This Q&A post originally appeared on the LandlordsNY blog, where Michelle Maratto Itkowitz is the "Legal Expert".


Question:  “Hi, I hired a super that didn't work out after 3 weeks.  He signed an agreement of hire that specified the apartment he moved into is not his and that is tied to him being a super.  I have since fired him but allowed him to stay in the apartment for free, for 2 months as a severance and to be nice. He does NOT have a lease obviously. [How do I get him out?]”

Answer:  The super is what is known legally as a Tenant-at-Will.  

A tenancy-at-will is “One who enters upon lands by permission of the owner, without any term being prescribed or rent reserved…”  Larned v. Hudson, 60 N.Y. 102 (1875).  The obligation to pay rent is not an absolute element of “tenancy at will”.  Fisher v. Queens Park Realty Corp., 41 A.D.2d 547 (2d Dept.1973).  Exclusive use and possession…is sufficient to create a “tenant at will”.  See Burns v. Bryant, 31 N.Y. 453 (1865) (“The defendant was in possession, holding for no particular time, paying no rent, making no compensation for the use of the land, … He was clearly a tenant at will”).  The dispositive test is whether “he who is in possession has, by some act or agreement, recognized the other as his lessor or landlord and taken upon himself the character of a tenant under him, so that he is not at liberty afterwards to dispute his title[.]”  Benjamin v. Benjamin, 5 N.Y. 383 (1851).  An example of a tenancy-at-will is when employee remained in possession after employment relationship ended.  See, e.g., Harris v. Frink, 49 N.Y. 24 (1872); Stiles v. Donovan, 100 Misc. 2d 1048 (Civ. Ct. 1979).

A tenant-at-will is entitled to a Thirty Day Notice before you evict him.  

Real Property Law § 228:

A tenancy at will or … however created, may be terminated by a written notice of not less than thirty days given in behalf of the landlord, to the tenant, requiring him to remove from the premises; which notice must be served, either by delivering to the tenant or to a person of suitable age and discretion, residing upon the premises, or if neither the tenant nor such a person can be found, by affixing it upon a conspicuous part of the premises, where it may be conveniently read. At the expiration of thirty days after the service of such notice, the landlord may re-enter, maintain an action to recover possession, or proceed, in the manner prescribed by law, to remove the tenant, without further or other notice to quit.

I understand that you told the super he could remain, rent-free, for two months.  I believe, however, that if the super wanted to simply stick around and got a lawyer to help him do it – this is an argument that they could make.  

Hopefully he will go (or went) on his own.  If he doesn’t, tell your landlord and tenant lawyer they need to evict a tenant-at-will.

Let me know if you need anything else.

Michelle
mmaratto@itkowitz.com

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