Conflicting Predicate Notices In Landlord/Tenant Matters

In the magical, fairtytale world of landlord-tenant law, the story book always opens up to the first chapter: ‘The Predicate Notice’ (also called the Notice to Quit). A predicate notice is the notice that must be served on a tenant before a summary proceeding can be commenced in Court. It states the foundation or basis for the action that is to follow. This could be in the form of a rent demand, which is a predicate notice for a non-payment action; or a notice of default, notice to cure, notice of termination/termination of a month-to-month tenancy or Notice to Quit, which are predicate notices to commencing a holdover action. Depending on the nature of the tenancy and the grounds upon which the proceeding is brought (i.e. holdover, squatter, non-payment, etc.) the predicate notice can have several different lifespans anywhere between ten (10) days and ninety (90) days.

The old rule for a holdover was to give all tenants only 1 months’ notice. The Housing Stability and Tenant Protection Act of 2019 (“HSTPA”) changed the law to state that the length of the notice would be determined by the duration of the tenancy- if the tenant has been in possession less than one (1) year, a 30-Day Notice would apply; if the tenant has been in possession for at least one (1) year but less than two (2) years, a 60-Day Notice would apply; and if the tenant has been in possession for two (2) years or more, a 90-Day Notice would apply. For non-payments, under the old rule a 3-Day Notice was sufficient. The HSTPA now requires a 14-Day Notice (in addition to a 5-day grace period notice which cannot be served until the sixth day after the rental due date).  

The predicate notice is the important first step in commencing any action for eviction. It is well settled law that possession can only be awarded upon a valid predicate notice. See Chinatown Apartments, Inc. v. Chu Cho Lam, 51 N.Y.2d 786 (Court of Appeals, 1980). Furthermore, it is well settled that a notice of termination of a lease must be clear, unambiguous and unequivocal if it is to function as the catalyst which terminates a leasehold. A valid predicate notice is a condition precedent to a summary holdover proceeding and is not subject to cure or amendment. City of Buffalo Urban Renewal Agency v. Lane Bryant Queens, 90 A.D.2d 976 (4^th Dept. 1982).

How a predicate notice in written and appears to the tenants matters. Landlords want to instill a sense of importance and urgency, but the drafter must also take care not to employ deception. See M & T v. Caruso, 60 Misc.3d 501 (2018)(the Court found the predicate notice ‘potentially violative’ of Penal Law Section 190.50, entitled ‘Unlawful Collection Practices,’ a class B misdemeanor). In addition, the tenant is entitled to a precise statement of the grounds and facts upon which the landlord relies in seeking an eviction. See GAG Enterprises, Ltd v. Gonzalez, 6/15/88 N.Y.L.J. 30 (1988); Cypress Holding Corp. v. Nivar, 7/19/89 N.Y.L.J. 20 (1989). Language in written instruments that work a forfeiture must be strictly construed. Defects therein are not amendable and require dismissal. Henry & Baltic Associates v. K&Q Food Corp., 7 Misc 3d 83 (2^nd Dept. 2005) (landlord’s notice to cure was defective inasmuch as it deprived tenant of the opportunity to cure, and thus landlord’s Petition in summary holdover proceeding would be dismissed). However, any defects must be pleaded in an Answer or Motion to Dismiss. The Court may not review the notice and dismiss the proceeding sua sponte. See Niagara Capital LLC v. Cruz, 61 Misc.3d 45 (1^st Dept. 2019).

Wow, this all sounds pretty serious! – Possession can only be awarded upon a valid predicate notice, which is a condition precedent, is not subject to cure or amendment, and any defects raised in an Answer or Motion require dismissal. Sounds like we better get it right the first time! Suffice to say, it is crucial to know which predicate notice applies in a given situation before commencing an action to ensure that we are in compliance with the statutory prerequisites.

Now I have (in my limited experience), personally come into contact with scenarios wherein multiple predicate notices were served by Petitioner’s counsel wherein certain aspects of the tenancy were unclear in order to “play it safe”: perhaps a new landlord has come into ownership and is not sure if an existing tenant has been present for one year or for ten years- “Let’s send a 90 Day Notice.”; perhaps the new landlord has never received any rent and is unsure whether the tenant had a formal lease requiring payment- “Send a 14 Day Notice as well!”; or perhaps the current tenant was the original lessor’s niece who had permission to live at the premises, but the original lessor has since vacated- “Why not? send a 10 Day Notice too!” Tenancy scenarios can become complicated. The question becomes: are these cover-all attempts to serve more than one predicate notice proper? Or more important- is this even LEGAL? What happens when multiple, possibly conflicting or even dueling, predicate notices are served? (*cue Dueling Banjos theme*)

Pursuant to Real Property Actions and Procedures Law (“RPAPL”) Section 713, “[a] special proceeding may be maintained under this article after a ten-day notice to quit has been served upon the respondent in the matter prescribed in section 735 upon the following grounds…” Various grounds are thereby enumerated where a landlord-tenant relationship is found not to exist, such as when an occupant is alleged to be a licensee (in New York, a “licensee” is a person who has permission to occupy a dwelling, house, room, apartment or space, but does not have a formal written or oral agreement and has never paid rent directly to a landlord or owner).

Alternatively, RPAPL Section 711 states the grounds under which a summary proceeding may be commenced against a person where a landlord-tenant relationship is found to exist. This includes commencing a summary proceeding for the nonpayment of rent or commencing a summary proceeding based upon an alleged termination of tenancy (holdover).

In order to maintain an action under RPAPL Section 711(1) against a tenant who continues in possession of a premises after expiration of the term, New York Real Property Law (“RPL”) 232-a requires that a landlord properly terminate the month-to-month tenancy of the tenant first. Furthermore, in New York City, the RPL requires a landlord to serve a termination notice upon the tenant compliant with the notice period prescribed under Section 226-c. RPAPL Section 226-c states, in relevant part, “No monthly tenant, or tenant from month to month, shall hereafter be removed from any lands or buildings in the city of New York on the grounds of holding over the tenant’s term unless pursuant to the notice period required by subdivision two of section two hundred twenty-six-c of this article…the landlord or the landlord’s agent serve upon the tenant, in the same manner in which a notice of petition in summary proceedings is now allowed to be served by law, a notice in writing to the effect that the landlord elects to terminate the tenancy and that unless the tenant removes from such premises on the day designated in the notice, the landlord will commence summary proceedings under the statute to remove such tenant therefrom.”

In regard to a summary proceeding brought against a tenant whom has purportedly defaulted in the payment of rent under an agreement which the premises are held, RPAPL Section 711(2) states that a proceeding may be maintained after “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 as prescribed in section seven hundred thirty-five of this article.”

A Petitioner may not assert contradictory legal principles as a basis for a summary proceeding as this does not avail Respondents with a fair opportunity to assert a proper defense; specifically, Petitioners may not commence proceedings based on incompatible theories. See Cypress Holding Corp. v. Nivar (supra)(finding that alternative grounds for terminating a tenancy cannot be alleged in a single notice).

The Second Department has been firm in holding that a proceeding shall be dismissed where a predicate notice is based upon incompatible legal theories of law, such as an allegation that a person is a licensee and also a tenant, as such a notice is confusing and misleading and does not provide a fair opportunity to allow the Respondent to formulate a defense. City of N.Y. v. Bullock, 159 Misc.2d 716 (2^nd Dept. 1995) (“[h]aving no reasonable, rational basis for not knowing respondent’s status it is impermissible to allege the alternative grounds of squatter/licensee”). See also 349 Dino Realty Corp. v. Baker, N.Y.L.J. 3/25/92 (1992); 451 Marion LLC, v. Gonzalez, 44 Misc.3d 1213(A)(2014). A predicate notice that pleads alternative theories because its drafter does not know how an occupant gained occupancy must state the reason the drafter does not know how an occupant gained occupancy. New York Shun on Realty Development v. Mathieu, N.Y.L.J. 1202735692399 (2015).

Predicate notices in summary eviction proceedings “must be definite and unequivocal.” 297 Lenox Realty Co. v. Babel, 19 Misc.3d 1145(A)(2008); See also 542 Holding Corp. v. Prince Fashions, Inc., 46 A.D.3d 309 (2^nd Dept. 2007). Predicate notices which contain a misstatement are insufficient and such misstatements warrant dismissal of the proceeding if the “misstatement is shown to have materially mislead or prejudiced the tenants in responding to landlord’s petition.” 290 Riverside Co. v. Bottero, 2003 NY Slip Op 51428(U)(2003); 1605 Realty Corp. v. Cataquet, 54 Misc.3d 1225(A)(2017)(“inconsistent and erroneous statements in the termination notice [render] it an unreliable and impermissible basis for the Petition.”); 190 Riverside Drive LLC v. Nosei, 185 Misc.2d 696 (1^st Dept. 2000)(“where such notice contains substantial and prejudicial misstatements will it be subject to ‘strict construction as a matter of equity.’”); Citadel Estates, LLC v. Pathways to Housing, Inc., 4 Misc.3d 1222(A)(2014)(in a non-primary residence case, one statement in the predicate notice was false and another was contradictory. As a result of the erroneous and contradictory statements, the notice was fatally defective and the case was dismissed).

As predicate notices cannot be amended, a defective predicate notice in a summary eviction proceeding requires dismissal. See, First Federal Savings and Loan Association of Rochester, 158 Misc.2d 219 (1993); Chinatown Apt. Inc. v. Chin Cho Lam (supra); Katz Park Ave. Corp. v. Olden, 158 Misc.2d 541(1993); University Tower Associates v. Gibson, 18 Misc.3d 349 (2007).

In conclusion, the law here is pretty straightforward- conflicting predicate notices are not allowed and any defects or contradictions will likely lead to a non-prejudicial dismissal which can, of course, be renewed and refiled (albeit with the landlord’s ire and frustration at having to start from scratch). We must take care in analyzing tenancies and in selecting which predicate notice is proper for a given situation. There is widespread agreement in practice (of which I am a subscriber) that landlord’s should always err on the side of caution- if you are unsure of the duration of a tenancy, or whether a formal agreement was ever in place, best to give the tenant the benefit-of-the-doubt and send a 90 Day Notice. It might take longer (and the Landlord will, no doubt, balk about how much money he or she is losing in the interim), but your predicate notice is more likely to blossom into a beautiful Petition at the end of its life.

On that note, we leave you with a moving poem on the subject of landlords by Ilya Barshai:

I married a landlord
When I was 19 years old.
Oh, she wasn’t a landlord then.
She was an entire world,
Bundled up
In human flesh.
I loved her so much,
That she was barely real.

This whole landlord thing
Was only supposed to be
For a few months.
But ownership tends to possess
Those who dare call themselves
Owners.
And my darling,
My sunny, brilliant darling,
Withered.
And became somebody else’s
Dearest lord.