For years, landlords seeking to terminate residential tenancies outside of New York City had to be careful about the termination date they chose in a termination notice. That may no longer be the case, however, thanks to the enactment of the Housing Stabilization and Tenant Protection Act of 2019 (HSTPA).
Prior to the HSTPA, Real Property Law § 232(b) governed notifications to terminate month-to-month tenancies outside of the city. That statute required that 30 days’ notice be given, and case law interpreted the language of § 232(b) to require that “the surrender of possession date must coincide with the expiration of the term or rental period.” Hunt v. Hart, 188 Misc. 534, 534, 68 N.Y.S.2d 463, 464 (City Ct., Orange Co. 1947).
Therefore, for a month-to-month tenancy which “renewed” on the first day of each month, the termination date in the notice would have needed to be the first day of the calendar month following the expiration of the 30-day period – the “anniversary” of the lease term. If a landlord picked a day that did not coincide with this “anniversary” date, the subsequent holdover proceeding based on that termination notice could be dismissed. See e.g. Ferro v. Lawrence, 195 Misc. 2d 529, 530, 758 N.Y.S.2d 460, 461 (App. Term 2d Dep’t 2002) (holding that April 4th termination notice which purported to terminate tenancy on the 6th of the following month “was a nullity in that it failed to terminate the tenancy on its renewal date, the first day of a calendar month following a notice served ‘at least one month before the expiration of the term”).
The HSTPA modified RPL § 232(b)to apply to only non-residential tenancies and notices given by tenants to their landlords. For residential tenancies, RPL § 226-c now sets forth notice periods based on the number of years of occupancy to terminate residential holdover tenancies. Unlike the language of RPL § 232(b), RPL § 226-c requires that 30, 60, or 90 days’ notice of termination be provided to a tenant, with no reference to months or to the expiration of a lease term.
It follows that all pre-2019 law which dealt with termination notices issued to residential tenants outside of New York City pursuant to RPL § 232(b), and which required that those notices must terminate the tenancy on a specific day of a calendar month, should no longer be applicable to termination notices issued pursuant to RPL § 226-c.
As long as landlords comply with the 30-60-90 day notice requirements, the termination notice should be effective, regardless of what day of the month is set forth in the notice as the termination date. That said, due to the lack of a developed body of case law interpreting the effects of these statutory revisions on holdover proceedings outside of New York City, tenants may continue to raise timing issues in termination notices as a defense in holdover proceedings until the courts expressly address this issue. In the meantime, we will continue to monitor developments in decisions interpreting the HSTPA.
