Predicate Notices required in Holdover Proceedings – Prior to commencing a holdover proceeding, petitioner must, in most instances, serve certain notices. As a general rule, a predicate notice dies when the holdover proceeding based on it is dismissed (However, some Courts allow a second proceeding based upon the same notice where the second proceeding is commenced before the first proceeding is dismissed).
Notice to Terminate – The purpose is to terminate the tenancy and notify tenant of the consequences of failure to vacate the premises. The Notice can be required by lease, statute or regulation. This Notice is required to terminate a tenancy at a time other than at the end of a definite rental term (with Section 8 or regulated housing, a Notice to Terminate is always required). The summary proceeding cannot be commenced until after the date set forth in the Notice for the termination of the tenancy. The timing for the Notice is governed by lease and/or statute. For tenancies with a lease, the lease must authorize early termination. Notice requirements are then governed by the lease. In a month-to-month tenancy, tenant is entitled to one month’s notice (as opposed to 30 days in NYC) (See RPAPL §232-b). Therefore, in order to terminate a month-to month tenancy on May 31st, the Notice must be served by April 30th.
The manner of service of the Notice is governed by lease or by statute. RPAPL § 232-b governs month-to-month termination notices outside of NYC and does not require that the Notice be in writing, nor does it specify the manner in which the Notice is to be served.
The Notice must contain sufficient facts to establish grounds for the landlord to recover possession. For example, if termination is based upon an alleged breach of a lease, the Notice must set forth the specific lease provision involved. It must set forth specific facts and not simply legal conclusions. It must advise the tenant of the date of termination of the tenancy; it must be signed by the landlord (or an agent known by tenant or included in the lease); it must notify tenant that if tenant fails to vacate by the termination date, an eviction proceeding will be commenced; it must be unequivocal and unambiguous as well as sufficiently detailed; it cannot seek an increase in the rent and terminate the tenancy; it cannot give tenant both an opportunity to cure and terminate the tenancy.
Notice to Quit-a notice to an occupant of a dwelling unit that the occupant must leave or a summary eviction proceeding will be commenced by the owner, seeking a judgment of possession to remove the occupant. This notice is used where no landlord/tenant relationship exists (RPAPL § 713; ie., squatter or licensee).
This Notice must be served at least 10 days prior to commencement of the proceeding, and must be served in “the manner prescribed in section 735″ (RPAPL § 713); same service as for a notice of petition and petition. The Notice must state the facts upon which the proceeding is based, including whether the occupant is a squatter or a licensee, if known (See 349 East 49th Street Equities v Vought, 5/27/82 NYLJ 5, col.4 [App Term 1st Dept]).
Notice to Cure – This is a notice to tenant that tenant is in default of some obligation arising out of the lease and that tenant’s obligation must be met or a summary eviction proceeding will be commenced.
This Notice must afford tenant a 10-day period to cure the condition alleged in order to constitute a default of an obligation of the tenancy. This Notice can be served personally or by mail (However, add five days from date of mailing where service is by mail). The Notice must be specific and must advise that tenant has a specific time period to cure the alleged breach. It must be sufficiently specific to apprise tenant of the condition that landlord alleges is a default of the tenant’s obligations. The Notice must also clearly advise tenant of what must be done to cure the breach, and it must inform tenant of the consequences of failing to “cure” the condition alleged to be the breach.
Yellowstone Injunction – A tenant may be able to obtain an injunction against expiration of the cure period in Supreme Court, where the “condition” to be cured cannot be cured before the period of time allowed in the Notice elapses. Such relief is not available in City Court (lack of jurisdiction to grant this injunctive relief).