Q: At what point in NY state does a tenant becomes a squatter after they give notice they are moving out
I have an apartment tenant who after not paying rent has made the decision to move out on their own. They have passed the final date they have given me, and I need to know at what point I can treat them as squatters and not as a tenant. I'm aware squatters rights say that once you've lived somewhere for 30 days you're a legal tenant, but I'm not sure if that 30 days counts the time they actually lived there legally, or if it resets now that their lease is up and they would no longer be legal tenants
A:
Dear Albany Landlord
A tenant even when holding over after giving notice that she is moving out never devolves to the status of Squatter. Your tenant is nothing more now than a Holdover Tenant as far as housing law goes.
Here's the rough part for you. NYS law places the burden on the Landlord to properly end the tenancy even if the lease expired. This must be completed before the Landlord even has a right to go to court for an eviction proceeding.
Right now even with the tenant not paying rent and with the lease expired you must be able to show that you provided the required advance written notification that you were not going to continue with the tenancy. If the tenant has lived in the house for two years or more then the predicate notice is ninety days. If you do so this month then the ninety day period ends March 31, 2024. If you delay until January you give the tenant an extra free month.
Of course your tenant may just move out and do so on her own. But if she doesn't do so you know that you have to serve her with the proper advance legal notice.
Practical pointer. With the change in State law in 2019 no Landlord should ever take for granted that a tenant will voluntary move out even when the tenant provided the Landlord with a proper notice of intention to quit the premises. A Landlord should follow up with the appropriate Real Property Law Section 226-C written notification that the landlord is ending the tenancy. Then if the tenant does not move out the Landlord has not wasted away time and will be ready to go to court when time runs out.
Daniel Michael Luisi and Tim Akpinar agree with this answer
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