Greenwich Gardens Associates v. Pitt

• Decision Date: 24 December 1984
• Citation: 484 N.Y.S.2d 439,126 Misc.2d 947
• Parties: GREENWICH GARDENS ASSOCIATES, Petitioner, v. Miller L. PITT, Respondent.
• Court: New York District Court

Page 439

484 N.Y.S.2d 439

126 Misc.2d 947

GREENWICH GARDENS ASSOCIATES, Petitioner, v. Miller L. PITT, Respondent.

District Court of Nassau County,

First District.

Dec. 24, 1984.

Barry A. Kamen, P.C., Garden City, for petitioner.

Leonard S. Clark, Nassau/Suffolk Law Services Committee, Inc. by Victor J. Ambrose, Hempstead, for respondent.

DECISION AFTER TRIAL

HAROLD FERTIG, Judge.

The respondent in this summary proceeding is a handicapped tenant in a rental unit owned by the petitioner, a private landlord. The issues raised are unique to tenancies in Section 8 housing and some appear to be of first impression. Her rent is partially paid by federal rent subsidies under the Section 8 Housing Assistance Payments Program for New Construction, which was established by Congress through enactment of Section 8 of the Housing and Community Development Act of 1974. See, 42 U.S.C. Sec. 1437f. The program is implemented by regulations promulgated by the Department of Housing and Urban Development (HUD), found at 24 C.F.R. Part 880 et seq. (1984).

Based upon the credible evidence adduced at trial, the Court finds the following to be the facts of this case. On August 11, 1978, the parties entered into a lease agreement for the subject premises, the respondent having met the requirements for eligibility for the Section 8 program. A copy of the lease agreement was entered into evidence as petitioner's exhibit 1. The term of the lease extended from August 15, 1978 through July 31, 1980 and the total monthly rent for the unit, subject to adjustment as provided for in the HUD regulations, was $428. Of that amount, $400 was to be paid by HUD as a housing assistance payment on behalf of the tenant, and $28 was to be paid by the tenant. At the time this action was commenced, the monthly payments to be made by HUD and the tenant had been adjusted to $499 and $99, respectively.

Paragraph 10(b) of the lease agreement between the parties provides as follows:

"10. Tenant, for himself and his heirs, executors and administrators, agrees as follows:

.... (b) to keep the dwelling unit in a clean and sanitary condition, and to comply with all the laws, health and policy requirements with respect to said dwelling unit and appurtenances ..."

Paragraph 4 of the lease agreement states:

"Unless terminated as provided herein the Lease shall be automatically renewed for successive terms of one (1) month each at the aforesaid rental, subject to adjustment as herein provided, payable in advance without demand on the first day of each month. Each party may terminate this Lease at the end of the initial term or any successive term by giving thirty (30) days written notice in advance to the other party."

In accordance with the latter provision, the respondent was sent a notice, entered as respondent's exhibit C, that her lease would not be renewed at the end of the term and that she must vacate the apartment by July 31, 1980.

Subsequent to her receipt of this termination notice, the respondent remained in possession of the subject premises. The petitioner continued to collect monthly payments of rent from the respondent and from HUD under the Section 8 program. The testimony was uncontroverted that, although HUD approved a new form of lease in November, 1981, a copy of which was entered into evidence as petitioner's exhibit 5, the respondent was never offered a new lease for execution. She also was not notified to appear for recertification of her income, which was last certified in 1981.

On or about July 27, 1984, the respondent was served with a notice of termination of her tenancy, which was entered into evidence as petitioner's exhibit 4. The notice stated that the respondent's tenancy would be terminated as of August 31, 1984, for material noncompliance with the terms of the lease agreement. Specifically, the respondent was charged with failing to maintain her unit by keeping it clean and removing garbage and other waste from it in a clean and safe manner and with permitting the accumulation of garbage and other waste in the unit, as well as permitting it to become infested with roaches and other vermin.

The petitioner called its exterminator as a witness. He testified that when he last treated the apartment in July, 1984, he found a film of food and grease on the counters, cabinets, stove and floor of the kitchen, as well as food and garbage on the floors of the kitchen and living room. He found numerous roaches, both live and dead, throughout the apartment, with the heaviest concentrations in the kitchen and bathroom. He testified that in the bathroom alone he saw 40 to 50 roaches. He observed additional roaches in holes in the bathroom walls, and stated that the inside of the bathroom door, which was off the hinges, was teeming with roaches. When he asked the respondent to remove her food from the kitchen cabinets to enable him to treat them, she refused to cooperate. The testimony of the exterminator, whom the Court found to be highly credible, as well as the photographs of the interior of the unit which were admitted into evidence, indicated that the respondent had indeed permitted garbage and waste to accumulate in the apartment and had permitted it to become heavily infested with roaches.

The termination notice served on the respondent in response to the aforesaid conditions, in addition to specifying the grounds for termination of the tenancy, included the following provision:

"You have 10 days within which to discuss the proposed termination of your tenancy with the Landlord. The 10 day period will begin on the earlier of the date this notice was hand delivered to your unit or the day after this notice is mailed. If you request the meeting, Landlord agrees to discuss the proposed termination with you. You have the right to defend any summary proceeding which is brought in Court against you to terminate your tenancy."

Following service of said termination notice in July, 1984, the petitioner requested and accepted Section 8 housing assistance payments from HUD on behalf of the respondent for the months of August and September, 1984, but refused to accept the respondent's tender of her portion of the rent for those months. The housing assistance payment covering September, 1984 was made on September 4, 1984. The instant holdover summary proceeding was commenced on or about September 5, 1984.

The parties have raised several issues requiring resolution. These are, specifically, what the terms of the respondent's tenancy were at the time she was served with the termination notice; whether the notice complied with federal regulations; whether the HUD housing assistance payments are deemed to be rent payments; and, if so, whether the petitioner's acceptance of the HUD payment after the termination date and before the commencement of this summary proceeding effected a waiver of the termination notice. These issues arise primarily due to the heavily regulated nature of a Section 8 tenancy.

The purpose of the Section 8 program is to aid lower income families in obtaining a decent place to live and to promote economically mixed housing (42 U.S.C. Sec. 1437f(a)). In order to qualify for the Section 8 new construction program, a prospective tenant must have an income within the HUD specified limits set forth at 24 C.F.R. Parts 812 and 889. The owner of the housing project is responsible for determining whether the applicant is eligible (24 C.F.R. 880.603(b)). Once accepted for the program, the tenant leases an assisted unit, paying the project owner "tenant rent," which is set at an amount between 15% and 25% of the tenant's income. HUD pays the balance of the total rent, or "contract rent," for the assisted unit by making monthly payments, known as "housing assistance payments", directly to the project owner (24 C.F.R. 880.101(b), (c)). The project owner is responsible for re-examining the tenant's income at least once each year, verifying the information provided by the tenant, and making any necessary adjustments in the tenant's rent payment to correspond with any changes in the tenant's income (24 C.F.R. 880.603(d)).

Terms of Respondent's Tenancy

In the case at bar, the parties entered into a lease agreement in 1978 which provided that the lease would be renewed automatically at the end of its two-year term for successive terms of one month each unless the lease were terminated by either party. Although the petitioner served the respondent with a termination notice effective July 31, 1980, which under the terms of the lease terminated the tenancy, the respondent continued to reside in the apartment and the petitioner accepted both her rent payments and the HUD assistance payments made on her behalf.

The petitioner's acceptance of rent for the period following the expiration of the lease effected a waiver of the termination notice, and must be deemed to be an admission of the continuation of the tenancy (See, Rasch, New York Landlord and Tenant, 2d Ed., Sec. 1019; 33 N.Y.Jur., Landlord and Tenant, Sec. 59 (1984)). In addition, Real Property Law Sec. 232-c provides that a landlord's acceptance of rent from a holdover tenant for any period subsequent to the expiration of the term of the lease creates a month to month tenancy, in the absence of an agreement, either express or implied, providing otherwise (Real Property Law Sec. 232-c. See, also, 34 N.Y.Jur., Landlord and Tenant, Secs. 404, 410-411 (1984)). Such a holdover tenancy impliedly continues on the same terms as those contained in the original instrument, with the exception that the term is on a month to month basis, unless the parties prove otherwise (Tubbs v. Hendrickson, 88 Misc.2d 917, 390 N.Y.S.2d 791; 34 N.Y.Jur., Landlord and Tenant, Sec. 413 (1984); City of N.Y. v. Penn R.R. Co., 37 N.Y.2d 298, 372 N.Y.S.2d 56, 333 N.E.2d 361). At the expiration of the original lease term, the actions of both parties clearly implied a continuation of the tenancy on the...