Follow Seven Rules When Sending Nonrenewal Notice for Nonprimary Residence Case

If you’re thinking about evicting a rent-stabilized tenant for nonprimary residence, don’t derail your case before it even starts. Nonprimary residence claims are perhaps the most common type of holdover proceedings brought by New York City owners. Although every case has its own unique set of facts, the cases generally follow a common path. And many owners will take the preliminary steps themselves and hire an attorney only after the tenant’s lease ends. But to do this, you’ve got to know what you’re doing, or you can easily lose your case based on technical mistakes. Once you lose your case, you must give the tenant another lease. You can’t try for the eviction again until that lease ends.

You’re most likely to run into trouble when sending the tenant a legal document called a “nonrenewal” notice. This notice tells the tenant that you’re not renewing his lease and why. But if you don’t send the notice at exactly the right time, or don’t include the required information, a court will throw out your case. Here are seven rules you should follow.

Rule 1: Send Nonrenewal Notice on Time

You must mail or hand-deliver the nonrenewal notice, also called a “Golub” notice, to the tenant in a window period from 150 to 120 days before the lease ends. Courts are very strict in enforcing this time requirement. If the owner misses this window period, even by a day, the case is subject to dismissal. Be sure to avoid sending the notice too early (more than 150 days before the lease ends) or too late (less than 120 days before the lease ends).

If you think a tenant may not be living in an apartment as a nonprimary resident, don’t wait until the last minute to check it out. Start investigating (for example, speak with building staff or hire a private investigator) at least six months before the lease expires. This way, you’ll have the facts you need in plenty of time to prepare and send a nonrenewal notice during the window period.

Rule 2: Properly Identify Apartment in Notice

To be legally effective, a nonrenewal notice must be timely and unequivocal. As such, the nonrenewal notice must identify the apartment with exactly the same numbers or letters used in the tenant’s lease. Otherwise, the court might throw out your case.

In addition to the full address of the apartment, you must provide a reason for the nonrenewal, state facts that support the reason for nonrenewal, and give a citation to the rent regulation authorizing nonrenewal.

Rule 3: Include Enough Facts in Nonrenewal Notice

Owners often don’t put enough facts in the nonrenewal notice. You’re required to include the facts that lead you to believe the tenant isn’t using the apartment as his primary residence. Don’t simply state your conclusion that the tenant isn’t a primary resident. If you don’t explain why you came to the conclusion, a court may rule that the nonrenewal notice was no good.

Courts have not required that the notices contain all of the facts necessary to win a case but only just enough facts to show that the landlord has a valid basis to pursue the claim. If your notice doesn’t contain sufficient facts or if it’s not clear, the case is subject to dismissal.

For example, if you know that the tenant is living at another address, state the place where you believe the tenant is living. Or if your building staff hasn’t seen the tenant in the building for the past two years, state this in your notice. Other facts you could add to your notice include:

• If the tenant hasn’t paid New York City resident income taxes for the past year or years;
• If the tenant’s driver’s license and/or automobile registration list another address;
• If the tenant’s voting records list another address;
• If the tenant’s children attend school using another address.

In one case, an owner sued to evict a rent-stabilized tenant for nonprimary residence. The tenant claimed that the owner’s nonrenewal notice was defective because it didn’t state enough facts upon which to base the claim. The court ruled for the tenant and dismissed the case. The owner appealed and won. The notice claimed that the tenant lived at a specific address in Clarence, N.Y., and listed a phone number for that address. The notice also stated that the owner’s employees had seen the tenant at the apartment building only once a month for less than a week each time. According to the court, these facts gave the tenant sufficient notice of the grounds for the owner’s claim of nonprimary residence [Second 82nd Corp. v. Veiders, December 2011].

Rule 4: Use Flexible Language

You may uncover more evidence of the tenant’s nonprimary residence after you send the notice. But a court might not let you present this evidence if you didn’t mention it in your notice. To avoid this risk, include a statement that will allow you to bring evidence discovered later to the court’s attention as it becomes available.

You could, for example, precede your recitation of the facts with a statement like this: “The facts supporting this conclusion include, but are not limited to . . . .” Conclude with “. . . and such other facts as will be ascertained during the course of discovery proceedings.” Then, if you discover on the day before the trial that the tenant is registered to vote in another state, the court is more likely to let you present that evidence—even though you didn’t mention it in the nonrenewal notice.

Rule 5: Combine Nonrenewal Notice with 30-Day Termination Notice

Often owners combine the Golub notice with a 30-day notice of termination advising the tenant that his tenancy is terminated upon its conclusion. It’s important to note that neither the Golub notice nor the termination notice constitutes the commencement of an eviction proceeding. A holdover proceeding can’t be commenced until the current lease ends.

Typically, you’d send a termination notice at least 30 days before you’d start the eviction proceeding. Therefore, to save money and avoid missing the deadline for the termination notice, you can combine the nonrenewal and termination notices and send them to the tenant from 150 to 120 days before the tenant’s lease ends. We’ve provided a Model Notice: Send Nonrenewal Notice Combined with Termination Notice, that you can adapt and use.

Make sure your termination notice tells the tenant the following three things, whether it’s combined with the nonrenewal notice or sent separately:

• The tenancy ends on the last day of the current lease (state that date);
• You aren’t offering the tenant a renewal lease; and
• After the lease ends, you plan to start an eviction proceeding against the tenant based on nonprimary residence.

The termination notice should also include the facts supporting your conclusion of nonprimary residence. Since the supporting facts will be the same for both the termination and nonrenewal notices, you’ll need to list the facts only once in a combined notice.

Rule 6: Send by Method Required in Lease

Your lease should say exactly how you must send notices to the tenant. For example, most leases require owners to send notices by certified mail, return receipt requested. Be sure to send the nonrenewal notice in the way the lease requires.

In one case, an owner sued to evict a tenant after sending the tenant a lease nonrenewal notice. The tenant claimed that he didn’t receive the nonrenewal notice. The court ruled for the tenant and dismissed the case. The owner appealed and lost. The owner’s witness supposedly sent the nonrenewal notice to the tenant, but had no independent recollection of whether he served the notice. And the tenant testified that she never received the nonrenewal notice at any address [Mautner-Glick Corporation v. Glazer, January 2016].

Rule 7: Don’t Send Renewal Offer After Nonrenewal Notice

Once you send the nonrenewal notice to the tenant, don’t mistakenly offer to renew the tenant’s lease. The court may not allow you to “take back” the renewal offer. You’ll be forced to renew the tenant’s lease.

Similarly, you can avoid any confusion and delays in succeeding in your eventual holdover proceeding by not accepting rent after a lease termination. In one case, an owner eventually succeeded in an eviction case after a managing agent accepted a tenant’s rent after lease termination but only after a lengthy legal battle. The owner sent a lease nonrenewal/termination notice to tenant on Jan. 5, 2010, stating that the lease wouldn’t be renewed after April 30, 2010.

The tenant didn’t move out but sent unsolicited rent checks to the owner on May 1, 2010, and June 1, 2010. The owner’s managing agent deposited the checks. The owner then started the eviction case. The tenant asked the court to dismiss the case because the owner had accepted the May and June rent checks. The owner’s managing agent said that it accepted the checks in error because it believed they represented use and occupancy charges. The court ruled for the tenant and dismissed the case. And the owner appealed and lost.

The owner then appealed to a higher court and won. Under the Rent Stabilization Law, the court stated that acceptance of unsolicited rent after the expiration of a lease doesn’t, by itself, amount to a voluntary waiver of the right to contest tenant’s nonprimary residence. A waiver can’t be created by negligence, oversight, or thoughtlessness. Here, the owner didn’t solicit the rent payments after April 30, 2010, or otherwise give the tenant the impression that it had reinstated her tenancy after serving the termination notice. The case was reinstated, and the owner could conduct pretrial questioning [Georgetown Unsold Shares LLC v. Ledet, June 2015].