Brooklyn, NY asked in Landlord - Tenant for New York

Q: Can Brooklyn landlord accept prorated rent, but say they are keeping it as a fee and tell me to move by the 30th?

I am renting in Brooklyn in a long-term Airbnb. I pay the leaseholder directly. I told her I was moving, but paid for 5 days for the following month because I plan to move on the 1st or 2nd. We don't have a written agreement, but she said that I have to move on the 30th. I said that's fine, just return my money and I will move the 30th. She said she will keep it as a fee since I didn't give her 30 days notice and to move on the 30th. I then said that either I will move on the 5th as planned or if she returned my money, I will move on the 30th. Is she allowed to keep my money and force me to move on the 30th or am I allowed to stay until the 5th since she accepted my money?

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1 Lawyer Answer
Steven Warren Smollens
Steven Warren Smollens
  • Landlord Tenant Lawyer
  • New York, NY
  • Licensed in New York

A: Dear Brooklyn Tenant:

It is hard to say which side is right because you and the tenant acted outside the law as presently consituted. A long-term Airbnb is indistiguishable from a sublease since Airbnb is ordinarily a short-term rental (that is under thirty days) and, in most instances is not legal, but subletting is legal except when the tenant subleases without advance written permission from the landlord.

New York State Housing Law does not recognize the concept of prorated rent. In other words, there is no known procedure to pay rent for one-sixth of a month. In New York State, the full rent comes due on the rent due date (usually the first day of the month) if the tenant occupies the rented apartment for only that one day and moves out that same day.

On the other hand, in NYC, there is no State Law that sets the prior notification requirement to a landlord when a tenant without a lease and only a month to month tenancy decides to move out. The New York Legislature forces all tenants outside NYC to give the landlord one month's heads up if deciding to end a month to month tenancy, and that same Legislature decided not to make an NYC month to month tenant give any mandated advance notice. Just move out before the next rent due date. In NYC, you should have been OK just moving out on the last day of the month without even needing to give notice--but most tenants will do so as a courtesy--even though no law says that is required. But stay one day into the next month, and that tenant will owe the entire month. No proration.

Your landlord is not allowed to keep the money you paid without any need to do so; you should move out before rent comes due again. If the landlord keeps the money you mistakenly paid, your remedy is a lawsuit in Small Claims Court.

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