Will a landlord be awarded lost rent in holdover case?

UPDATED: Aug 23, 2012

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Will a landlord be awarded lost rent in holdover case?

Will a landlord be awarded lost rents in a holdover case. The tenant did not pay this or last month’s rent and made damages to the property without notifying me. I found out after I inspected the premises and they have not repaired. Do I have to give them 30 days since the lease expired the end of last month?

Asked on August 23, 2012 under Real Estate Law, New York


Mark Siegel / Law Office of Mark A. Siegel

Answered 10 years ago | Contributor

Since a purpose of a holdover summary proceeding is to seek a judgment to recover legal possession of the leased premises, a money judgment for nonpayment of "rent" is not issued by the court. However, under NY law, if a landlord commences a holdover summary proceeding, the petition may include a request for use & occupancy. Use & occupancy may be fixed by the court based upon an amount equal to the monthly rent reserved in the lease, or it may be a different amount (based upon the fair value) as determined by the court. Generally, once the tenancy is terminated, if the tenant "holds over" following the expiration of the tenant's term, the court may award the landlord use & occupancy for the period of "holding over" by the tenant, if requested in the petition, & can direct the tenant to pay a specified sum as monthly use & occupancy during the pendency of the holdover proceeding in court.

A landlord's claim for damages is a separate & distinct claim from the relief sought in a holdover proceeding. If the landlord is holding a security deposit, the damage claim may be resolved by the tenant's agreement to forfeit the security deposit. If there is no agreement, or no security deposit being held, & the damages claimed by the landlord are within the jurisdictional limit of small claims court, the landlord may start a small claims action in the local town, justice or city court. If the damages exceed the monetary jurisdiction of small claims court, then the landlord would have to start a lawsuit in either the local court or the supreme court of the state, which would be determined by the amount of the damages claimed.

Under NY law, if a lease expires by its own terms (a fixed term), the landlord is not required to serve a notice of termination or notice to quit. However, if the landlord accepts rent from the tenant for the month following the last month under the expired lease, this may be deemed a month to month tenancy, in which case, service of a 30 day termination would be required before the landlord can start a holdover proceeding to recover possession.   


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