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[darik2]

I have a pretty in-depth Real Property Law question. The following is the scenario:

The tenant is on a month-to-month tenancy. By definition that means there is no lease.

According to NYHawk's post in the following thread: http://www.tenant.net/phpBB2/viewtopic.php?p=42172#42172, a month-to-month tenancy is renewed each month when a payment occur. He emphasizes that it is renewed for another month only when the payment is handed over to the landlord, which means that if the tenant keeps staying a month without paying, the landlord will have to go to court to evict the person, and cannot sue the tenant for the money for that months rent, as he was never obligated to pay it.

Now the problem is that these facts laid out by NYHawk seems to contradict the RPL Sec. 232-b, which states that the tenant has to give a 30 day termination notice, in month-to-month tenancies outside NYC. So according to NYHawk the following scenario could occur outside NYC:

1. The tenant proceeds into a new month without paying rent
2. The tenant hands over the keys to the land lord and moves out without having given any written notification.
3. The landlord wants to sue the tenant for not giving the move out notification.
4. The landlord wont win the case because as no payment was made this month, no new period was embarked upon.

I am purely interested in this from an educational perspective, so if you have some insight in the matter i appreciate any information.

Thanks a lot.

[orson19]

You are confused between the issue of when a new tenancy was created and the issue of whether the tenant owes damages for unlawful detainer (holding over), and/or for breaching the contract or statutory provision that requires the tenant to give 30 days notice of intent not to renew.

The tenancy ends when the tenant does not pay the rent on the first. That is the tenant no longer has a possessory interest in the real property. However, by statute the landlord can not eject the tenant by force or by making the property uninhabitable (eg shutting off the utilities), and so must have a judicial decree before the duly authorized marshall can use force to eject the tenant.

However, the tenant is liable to the landlord for monetary damages:

If the tenant remains in occupancy, the landlord is entitled to a judgment for the reasonable value of the occupancy. (In most jurisdictions this is usually equal to the rent, although in some the landlord may be able to get current fair market).

Even if the tenant moves at the end of the current tenancy, but did not give 30 days notice, the landlord would be entitled to any damages landlord can show resulted from the failure to give notice. eg the rental market is such that had landlord known tenant was going be out on Feb 28, landlord would have had a tenant moving in on March 1, and is out a few weeks or a month rent as a result of not getting the notice.

In some jurisdictions, if the tenant fails to move out after the unlawful detainer action is filed, or the three or five day notice is served, or sometimes after judgment, the landlord may get a judgment for a multiple of the rent from the start date (3 or 5 day notice, filing, judgment) until the tenant actually moves out.