Real Estate Law

How to Get a Nonpayment Case Dismissed

There are a series of steps a landlord must take before starting a rent nonpayment case.

The first hurdle is to make a demand of the rent upon the tenant.

While this demand may be made "in person" (orally) or "in writing," even this relatively simple predicate is governed by a number of procedural and technical requirements. Among other things, this demand must clearly inform the tenant of the approximate good-faith sum sought to be recovered and the encompassed time frame.

For example, requests for "all back rent" -- without further elaboration or delineation -- are insufficient to support a case.

Similarly, "lumping" -- offering a total dollar amount, without providing a breakdown or other substantiation for the calculation -- is also discouraged.

Of course, by making this demand, a landlord is acknowledging the ongoing nature of the landlord-tenant relationship and is seeking to recover such sums due pursuant to the parties' lease for the commercial or residential space.

The last thing a landlord wants to do is to muck up the case with inconsistent theories for recovering possession. For example, in Bank of New York. v. Kaplan, the landlord's pleadings alleged, on the one hand, a claim for the unpaid rent (pursuant to a renewal), yet alternatively asserted that the lease agreement had expired (and the tenancy  terminated). This is how the court framed the issue:

[T]the petition demands rent based on Petitioners's [sic] deeming the lease renewed by using their appraisal report. See Petition ¶¶23 & 24. However, alternatively, Petitioners seek possession upon termination of the lease based on Respondent's failure to properly renew the lease. See Petition ¶31. Respondent, therefore, seeks dismissal on the basis of inconsistent theories.

A petition cannot be based on alternative inconsistent theories .... The petition seeks rent which by that legal term acknowledges there is a tenancy pursuant to an agreement. Therefore, the payment of the demanded rent satisfies the petition and the tenancy continues. However, the petition seeking possession by that legal term there is no relationship and therefore the occupancy terminates upon a judgment of possession. Consequently, this petition which seeks both rents and termination is inconsistent and defective. Therefore, the motion for summary judgment is granted.

Sometimes, my friends, it's best to keep things simple.

The landlord should have opted for either a nonpayment or a holdover proceeding. (And, in the event neither neatly fit into the landlord's theory of recovery, an action for declaratory judgment -- filed with the county Supreme Court -- would have likely been the ideal way to go.)

Hedging bets may work for gamblers, but in New York's landlord-tenant court, that kind of strategy could get your case booted.

"Bank on it!"

For a copy of the Housing Court's decision, please use this link: Bank of New York. v. Kaplan

From Real Estate Law Blog posted 2007-03-19.