Itkowitz PLLC Wins in First Department on Tenancy-at-Will Case
October 20, 2019
In this case we
represented a single-family townhouse owner in a tony part of town. The owner’s
adult child had moved into the townhouse with him. The owner/father wanted the
occupant/child out. The child could well afford to re-locate somewhere else, she
just did not want to go. There was no lease and the daughter never paid rent.
I determined
that the occupant was a Tenant-at-Will, entitled to notice to terminate said
tenancy as per Real Property Law 228.
Generally, a
tenancy-at-will arises whenever a landlord permits another party to possess
property without any agreement as to a termination date or rent payment terms. See, e.g., Harris v. Frink, 49 N.Y. 24,
(1872); Stiles v. Donovan, 100 Misc.
2d 1048 (N.Y. City Civ. Ct. 1979) (tenancy-at-will created when employee
remained in possession after employment relationship ended). A tenancy-at-will
is created when a tenant enters into possession by permission of the landlord
for an indefinite term. For example, a lease “for the duration of the war and
one year after the signing of an armistice” was deemed to be indefinite in
duration, thereby creating a tenancy-at-will terminable by a thirty-day notice.
Michael Tuck Foundation v. Hazelcorn,
187 Misc. 954 (Mun. Ct. 1946), order
aff’d, 188 Misc. 1046 (App. Term 1947).
Real Property
Law § 228 requires a landlord to serve a written thirty-day notice of
termination upon tenants-at-will before the landlord may maintain a proceeding
to recover possession. See, e.g., Russo
v. Bendjak, N.Y.L.J., 10/17/90, p. 31, col. 4 (City Ct., White Plains);
Lippe v. Professional Surgical Supply Co., Inc., 132 Misc. 2d 293 (N.Y.
City Civ. Ct. 1986) (landlord’s failure to serve thirty-day termination notice
was fatal to holdover proceeding commenced by landlord against subtenant).
The occupant-daughter,
however, hired a large law firm, who said the occupant-daughter was in the
subject premises pursuant to “an agreement for the occupation of real estate in
the city of New York, which [did] not particularly specify the duration of the
occupation” (RPL § 232), and, as such, the agreement “shall be deemed to
continue until the first day of October next after the possession commences
under the agreement.” The daughter claimed that her interest in real property
had been fatally mischaracterized by my RPL § 228 notice. The occupant-daughter
brought an action against the owner-father in Supreme Court seeking a
declaratory judgment, hoping to gum up the works and slow us down from
initiating a summary holdover proceeding in Civil Court.
The daughter’s move
backfired when the Supreme Court Justice very quickly recognized that,
notwithstanding the fact that the October after the agreement to let the daughter
live in the house had long since come and gone, the daughter was, of course
a Tenant-at-Will who had been properly terminated pursuant to Real Property Law
§ 228. The Justice granted summary judgment, and the case actually moved along more
swiftly than had we been in Housing Court.
By the way, the
decision was upheld on appeal at the First Department. See Donnelly v.
Neumann, 170 A.D.3d 597 (1st Dept 2019).
Respectfully
submitted,
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