Senior
s’ and Disabled Right to Part Ways With Their Landlord
Update! The law was amended in June 2019 to include disabled persons.
The New York State Legislature amended Real Property Law §227-a in 2019 to include “individuals with a disability” as additional covered persons under the statute. Under the amended statute, any individuals with a disability will still be required to get the proper documentation, including a doctor’s note, a notarized letter from a family member and the notice of termination must be still be sent to the landlord. All other provisions of the statute will remain in full effect for disabled persons just as for seniors.
According to New York Executive Law §292: “[t]he term “disability” means (a) a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b) a record of such an impairment or (c) a condition regarded by others as such an impairment, provided, however, that in all provisions of this article dealing with employment, the term shall be limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held.”
In New York, senior citizens and disabled individuals have a statutory right to cancel a residential lease upon notice to their landlord in the event that they are no longer able to live independently so that they can move in with a family member or appropriate health care facility.
A lease is a binding contract between a landlord and tenant. Generally, tenants are liable for rent until end of their lease term unless the lease is terminated. They cannot just walk away. That is why the statutory right to terminate a residential lease is an important protection for senior citizens – it enables seniors to transition to more suitable, safe living situations without being liable for rent. Senior citizens do not need to forego a living situation that would be more beneficial for them while they wait for their lease to expire.
The senior citizens protected by this statute are people who are sixty two (62) years or older, or people who will turn 62 during term of lease, as well as the spouses residing with those seniors. A senior tenant can exercise their rights under this statute, Real Property Law §227-a, under the following scenarios: first, when a senior is moving in with a family because they are certified by their physician to be unable to continue to live independently for medical reasons and because they require assistance with activities of daily living (activities routinely done without assistance from others: eating, bathing, dressing, transferring, and maintaining continence); or, second, if the senior tenant has been notified of an opportunity to move to nursing home, health facility, senior housing, or to low- or moderate income housing.
The notice to terminate the lease must be delivered to the correct party, the lessor, owner, or managing agent. The statute provides that notice is deemed to be delivered five (5) days after mailing, implying that regular mail is sufficient. However, most leases contain a notice provision which indicates how to send notices to the landlord and it’s best to also serve notice to the landlord in accordance with such provision.
Along with the notice itself, a senior tenant must provide supporting documentation, their physician certification and a statement signed and notarized by their family member, that the senior tenant is related and moving in, or documents (such as an admission agreement or lease) demonstrating that the senior tenant has been or will soon be admitted to an adult care facility or residential health care facility. Tenants should keep a copy of any notice and supporting documentation sent to their landlord along with proof of mailing.
A senior tenant’s notice to terminate a lease under RPL §227-a is effective not earlier than thirty (30) days after next rent payment due. A senior tenant may provide more, but not less, notice. For example, if rent is due on the first of the month, and a senior tenant sends the notice in March, then the next rent payment is due April 1st and the earliest termination date could be May 1st.
Strictly following the procedure set forth in the statute is necessary to terminate the lease and limit the amount of rent for which a senior tenant can be held liable.
Case law underscores that there is no leeway or flexibility with regard to the statutory requirements.
- In Windsor Realty LLC v. Carroll, a senior tenant residing in an assisted living facility sought the return of rent and security deposit based on Real Property Law §227-a. The Court found that the tenant was liable for the rent at issue because the notice procedures were not followed. The notice was deemed to be defective because it was not accompanied by the admission agreement. Further, the timing of the notice, provided in October, terminated the lease effective thirty days after November rent was due (November 30th). The tenant was not entitled to the return of any sums that she had paid for October or the security deposit as November rent remained due.
- The Plotkin v. Fairfield at Setauket, LLC case again highlights the importance of the timing of the notice of lease termination. Here, a senior tenant sought the return of her security deposit after moving into senior housing. The tenant provided notice in June, and vacated that same month. Notice provided in June is effective (when rent is due on the first of the month) on July 30th. This tenant was found to be liable for July rent, and the landlord was permitted retain her security deposit.
- The senior tenant in the case Cucinotta v. Hanulak provided notice in September of her planned October 1st move-out. The landlord retained her security deposit and applied it as October rent, which was permitted by the lease and because the notice was not timely to terminate the lease as of October 1st. The senior tenant had also failed to provide supporting documentation with her notice. The Court rejected the tenants arguments based on equity and compliance with the statute “in spirit”. It’s clear that strict compliance with the statute is an absolute must.
The statute also addresses a landlord’s possible circumvention and retaliation. If a landlord inserts language into a lease that provides that a senior tenant waives the rights afforded by this statute, any such provision is deemed to be void, pursuant to the statute, as contrary to public policy. Further, where a senior tenant has properly terminated their lease, it is a misdemeanor for a landlord to interfere with the senior tenant’s personal property, the penalties for which are up to one year of imprisonment and/or a fine of up to $1,000.
Three things for seniors and disabled tenants to keep in mind if they seek to terminate their leases in order to transition to alternate housing and limit their liability for rent:
- follow the procedure set forth in Real Property Law §227-a,
- follow the procedure set forth in Real Property Law §227-a, and lastly,
- follow the procedure set forth in Real Property Law §227-a.
This is not intended to be legal advise. You should contact an attorney for advice regarding your specific situation.
Samuel Bergsohn is an associate practicing landlord/tenant, real estate law, and municipal law. He can be reached by phone at 866-303-9595 toll free or 845-764-9656 and by email.
