Hi Friends! I sure could use a piece of smart advice right now. I have a rather nuanced problem. 

Our home is a two-family, and we have a beautiful one-bedroom apartment at the side, where we have rented to a timely payer for about five years. The utilities are not separated; all utilities are included in the rent, so heat, hot water, electricity, everything -- we pay.  I accepted her tenancy years ago because she is a working professional, a single woman, and I knew she would be clean and would pay the rent on time. I checked her references. I acknowledged my own inner flags, too. I could tell she was going to be extremely anxious and uptight, but I figured I'd take a chance since the previous tenants spent their free time whacking off the faucets with baseball bats. 

The tenant adopted a little baby boy, and this is when her typical small complaints (Janet: There's no hot water! Me: You have to let the water run for more than two seconds.) started to grow. She started to complain about every little small thing, and to do so rather impolitely. 

Our house is an old Victorian, and the boiler has to strain to heat up her apartment as fast as she would like it. We go through this every year, but she often calls many times each winter to say that it's not getting to 68 degrees, it's only holding at 62, 63, 64. We always remind her to wait a little, and the heat will get there. This year, she purchased a space heater and deducted it from the rent. 

Fine. I didn't argue. But apparently this week, enraged that the heat was only at 66 and wasn't climbing to 68 fast enough for her and her baby, she called the Department of Health in our county to lodge an official complaint. I got a call, and had to explain to a stranger that yes, this is an old home, and yes, it takes a bit for the boiler to reach the apartment. No, I'm not slummy, and yes, we are in the process of looking into a new boiler, but sometimes the heat is a little slow to rise to temp. 

She's been difficult for a long time, potentially litigious, and we are tired. The apartment is rented at way below market value, and there is no reason to continue with a tenant that would go so far as to make a call and involve third parties. Frankly, I think it was a stupid move on her part. She must have known it would only alienate us. 

She does not have a paper lease anymore, though she did the first year. We agreed to an oral month-to-month lease, and according to my attorney, I am allowed to give her thirty days notice, which I did. She promptly responded that New York allows for ninety days notice if a tenant has been in the property for over two years. "I won't leave before ninety days," she told me flatly, on the phone. "You can evict me if you want to." 

I can't have a litigious tenant in our home any more. I'd like her out. Does anyone know what the law in New York really says? I have an attorney, but I think it would be unpleasant (and expensive) to begin legal proceedings before I talked to you, my Bigger Pockets gurus, first hand. 

I'm not interested in knock-down fight. I just don't want her on this property for any more than the law allows. If she continues through ninety days, this is ample opportunity for her to nitpick continuously, torturing us for week after week. 

Thank you for your help. All best. 

I don't know the laws in NY and I am not an attorney...... but in many states the 30 vs 60 vs 90 days notice does come into effect when the tenants have been on the property for some time. I would not be shocked if it truly is 90 days if she has been there for 5 years.

You should be able to look up the codes for NY online....... but your attorney should be able to look those up for you and give you advice on how to meet your state requirements.

Hi @Amy Zemser . I hate that you're in this unpleasant situation, but if it helps, many landlords have been there also, myself included!

Before I give my advice, I need to understand how any tenant could possibly know the laws governing termination of an oral month-to-month lease better than your own attorney! If it turns out she's right, you need to dump that lawyer and find yourself someone more experienced and knowledgeable. That's an unforgivable mistake for a professional to make.

Here's my advice: Buy. Her. Out.

No, she's not righteous. No, she doesn't deserve to be rewarded. No, paying her won't feel good... until she's gone!

Now, if you were in Texas or Georgia, I'd be giving very different advice. But, you're in New York, so you can either spend serious time and major money going through the eviction process, or you can pay her to get gone. You will either pay her or you'll pay an attorney...

Here's what I would do:

1. Find out (from a reliable source!) the fastest date I can legally have her out.
2. Inform her (in writing) of this move-out date and offer to pay her $XXX to be gone on or before then.
3. Prepare a simple one-page Lease Termination Agreement to be signed by tenant indicating she has voluntarily moved out in exchange for $XXX in compensation, further asserting she is terminating her month-to-month lease, has returned all keys, and will not be reentering the premises, upon pain of committing trespass.
4. Have tenant bring keys to attorney's office, sign/date/notarize the Agreement, and receive her $XXX in certified funds.
5. The minute the tenant is done signing at the attorney's office, I'd be changing the locks.

Good luck!

@Amy Zemser I would definitely read the tenant laws that NY has in total because it sounds like shes picking and choosing what applies to her. She sounds like a lot of my old residents. The only way we were able to work with them is to be more informed then they are and use the laws to your advantage. 

@Amy Zemser   Sadly, she is right.  Many important L/T laws changed in June.

Here is a URL to a summary:
https://www.nysar.com/docs/default-source/legal/2019-nys-landlord-amp-tenant-reform---memorandum-dated-7-29-19-with-branding-revisions-(4819-7462-4926-1).pdf?sfvrsn=0

I would strongly advise turning this over to an attorney who has studied all the changes.  Yes, it will be expensive, but not as expensive as have to restart your case a few times for procedural mistakes.

Another beauty:  you may have to wait 6 months to begin eviction proceedings, since if you serve a notice to terminate within six months of her filing a complaint to the DOH, this could be construed as landlord retaliation under the law.

Be very careful with her.  She has obviously studied the laws better than you have at this point.  I wish you luck. 

I am Glad someone brought up retaliation as it is illegal and it sounds like that is what you are doing. 

Hire an attorney that is familiar with NY tenant law and tread carefully 

What ever you do, don't retaliate. Take this opportunity to add separate electric meter and wiring for your unit. In that situation, I'd run it by my lawyer but I'd be surprised if it didn't fly. I'd send the following letter:

Great NEWS! we'll be upgrading the HVAC system in your apartment to a new super efficient ductless mini split system! This new system will also include air conditioning! In order to support the new system, electricians will be onsite on mm/dd/yyyy to install a new electric meter, and electric panel . As a result of these changes, effective on xxxx you'll be responsible for your own electric bill. Please sign and return the new lease by nnm/dd/yyyy.

the new DIY ductless mini-splits that come pre-charged are under 1k now and they are super efficient.

This way at least you'll have that taken care of while you have someone there paying rent. She'll hardly be able to go back to the building inspector to complain about how you installed a brand new super efficient heat/air system.

You need to get yourself a lawyer familiar with the laws.  Shame on them for telling you wrong it's clear that lawyer has no clue about any of the laws.

@Amy Zemser . Your tenant does have a legitimate concern with the heat. I think you need to address that issue before your next tenant moves in. Also you should separate the utilities. If you are going to be a landlord you should maintain your property. Seems like your heating system is way out of date. Saying all that I would give her the 90 day notice as required and move on. Attorney fees are expensive and that money could and should be spent on updating to a better heating and cooling system. I would have given her notice on the second complaint or I would have addressed her problem.

@Fred Cannon this is the right answer. She needs to fix the heat regardless of the tenant. She has put up with this tenant for 5 years. What’s 90 days? This time of year, judges would be sympathetic to a mother with a young child.

Better to fix the heat and allow the tenant reasonable time to move.

Ianal. I believe the 30/60/90 day notice requirement from the June 2019 law applies only to notices given starting some specific date in October 2019. Lawyers and judges are both scrambling to keep up with the new law and its impact in our area. If your lawyer is not a LL/tenant specialist, consider finding one-that's the situation we find ourselves in (our current lawyers are RE generalists and at this moment that might not be enough)

I am so grateful for this community and the wonderful responses. Can anyone in my state recommend a tenant/landlord attorney for this case? She is continuing to harass me with text messages. We are certainly in the process of switching out our boiler, but it is an old house, and her complaints are infinite. I'm certain she will continue to call the Dept. of Health if the heat goes one iota below 68, and while this is apparently within her legal right, is also unreasonable. Also, I'm not in the business of retaliation. We have been considering opening up the apartment for an ailing mother-in-law, or to just try Airbnb, for quite a while. It's time for her to go, and we need a definitive answer on the 30/60/90 law. 

@Amy Zemser

I don’t know NY law, but I can back you on the fact it’s an old Victorian and it takes a while to heat.

I have owned a few old houses (I actually won’t buy a newer house). My last house was 2000 sq ft, with oil fired cast iron radiators, boiler less than 10 years old. The heat lines off the boiler were 2” in diameter that fed all the radiators. It is a ton of water to heat, to then be pushed thru radiators throughout the entire house. My oil bills would run $3000+ over a winter. This process does not happen quickly of getting heat to the entire house.

Good luck Amy!

@Amy Zemser

I would also nicely tell her, no one is forcing you to live there, if you don’t like it here you are more than free to go.

@Amy Zemser You are dealing with someone who knows the law better than you and has a kid. Just hire a lawyer and cut off communication with her outside of handling any maintenance requests that come up between now and when she moves out.

@Michael Noto

I would tend to agree with mike in this case . The woman is well versed so play your cards carefully .as soon as she called in to the health department I would flip my wig on that ! At that point the tenant and I are done with that relationship

Cuomo changed the Rent Control laws June 2019. The laws are anti-Landlord. Look them up on-line. Also, fix the heat and since she has been there over one year, raise the rent on her.

Uhm...I usually side with landlords, but not in this case. Your heating system is inadequate, by your own admission. Her complaints about this are in your own words, difficult and unreasonable. You worry she is litigious, as if that's a dirty action, while you ask for references for a lawyer. You mention that what you really want is to rent it out as an airbnb. Uhm, this may come as shock to you, but the retaliation laws have been put in place for people who act as you are acting. I might call the city on you too. What is she supposed to do? Wear her winter coat in the house? Would that be "reasonable" to you???

(LOL - I keep my own heat at 63 and wear my winter coat in the house)

Fix the damn furnace. If she is not tearing the place up, causing a ruckus, and pays, you have a great tenant. I suspect once you bring the place up to standards, the complaints will cease.

Tenant terrorizes innocent landlord - good grief! Time for a change of perspective IMO.

Good luck!

Originally posted by @Amy Zemser :

Hi Friends! I sure could use a piece of smart advice right now. I have a rather nuanced problem. 

Our home is a two-family, and we have a beautiful one-bedroom apartment at the side, where we have rented to a timely payer for about five years. The utilities are not separated; all utilities are included in the rent, so heat, hot water, electricity, everything -- we pay.  I accepted her tenancy years ago because she is a working professional, a single woman, and I knew she would be clean and would pay the rent on time. I checked her references. I acknowledged my own inner flags, too. I could tell she was going to be extremely anxious and uptight, but I figured I'd take a chance since the previous tenants spent their free time whacking off the faucets with baseball bats. 

The tenant adopted a little baby boy, and this is when her typical small complaints (Janet: There's no hot water! Me: You have to let the water run for more than two seconds.) started to grow. She started to complain about every little small thing, and to do so rather impolitely. 

Our house is an old Victorian, and the boiler has to strain to heat up her apartment as fast as she would like it. We go through this every year, but she often calls many times each winter to say that it's not getting to 68 degrees, it's only holding at 62, 63, 64. We always remind her to wait a little, and the heat will get there. This year, she purchased a space heater and deducted it from the rent. 

Fine. I didn't argue. But apparently this week, enraged that the heat was only at 66 and wasn't climbing to 68 fast enough for her and her baby, she called the Department of Health in our county to lodge an official complaint. I got a call, and had to explain to a stranger that yes, this is an old home, and yes, it takes a bit for the boiler to reach the apartment. No, I'm not slummy, and yes, we are in the process of looking into a new boiler, but sometimes the heat is a little slow to rise to temp. 

She's been difficult for a long time, potentially litigious, and we are tired. The apartment is rented at way below market value, and there is no reason to continue with a tenant that would go so far as to make a call and involve third parties. Frankly, I think it was a stupid move on her part. She must have known it would only alienate us. 

She does not have a paper lease anymore, though she did the first year. We agreed to an oral month-to-month lease, and according to my attorney, I am allowed to give her thirty days notice, which I did. She promptly responded that New York allows for ninety days notice if a tenant has been in the property for over two years. "I won't leave before ninety days," she told me flatly, on the phone. "You can evict me if you want to." 

I can't have a litigious tenant in our home any more. I'd like her out. Does anyone know what the law in New York really says? I have an attorney, but I think it would be unpleasant (and expensive) to begin legal proceedings before I talked to you, my Bigger Pockets gurus, first hand. 

I'm not interested in knock-down fight. I just don't want her on this property for any more than the law allows. If she continues through ninety days, this is ample opportunity for her to nitpick continuously, torturing us for week after week. 

Thank you for your help. All best. 

 
 

Based on what you said she's on a month to month lease and you hate her living in your apartment. Normally I'd give some advice on how you can put some necessary distance between you and the tenant but she's your neighbor so things are different here. Just cut her loose. Send her a 30 day notice to move out. Problem solved.

I'd consult with a tenant-landlord lawyer immediately. Spending some money there to understand your options and the best way to move forward will be worth it.

I'm also in the boat of "if you aren't happy living here, lets terminate the agreement, no penalties, and get you moved out" -- I'd check with your lawyer but if the living conditions are so substandard whereby she calls the DOH, but when given a free and easy opportunity to leave and doesn't take it...seems like it would work against her down the line when cases are brought (if you get to that point).

But the main point is, no one here is in your situation and can't represent you in court. Free advice is exactly that...free...and while there is some very good advice here, you have people who have studied years and years in this filed, litigated cases, and have advised hundreds of clients in your situation.

It's no different to me than people who blindly speak about topics they no nothing of -- politics, climate change, national and global banking, etc. There are people who dedicate their lives to these topics; I'd rather hear from them instead of "Joe P. from Philadelphia" on my specific issue.

Thank you, @Joe P. Great advice. Grateful. 

@Amy Zemser I fear the lawyer is going to tell you that you need to wait a bit on a non-renew so it doesn't look like retaliation. I was suggesting an improvement to your property so that you have a legit reason for raising the rent and splitting off utilities (with a new m2m lease) for the tenant with less risk of it being misconstrued as retaliation. Many tenants want nice new stuff but then think that said nice new stuff should be free and they move if the rent goes up after improvements. If she moves, yay, if she stays you get more rent, your unit is in better shape and the lawyer can tell you how long you need to wait before you can non-renew notice her.   

@Jill F. your advice is so smart and helpful, thank you so much. 

I'll throw in something a little different.  

She will not go willing as long as your rent is lower than market.  Find out how much notice you have to give and how much you can increase her rent.  You want to increase it to ABOVE what other similar units are renting for as soon as you legally can.  If there is a legal rent increase cap, e.g. no more than 5% a year, then give her that amount, but also notice her with a schedule at the same time of 5% every year on the first date you can increase it until it is at market rate, plus some.

When she is paying above market rate, then she will look for another place to go on her own.

And in the mean time, you can properly fix the heat situation and notice her to vacate/evict if needed.  

Even if it ends up  noticing her of a rent increase starting, say March 1 and her vacate date is Feb 1, do it so she has a motive to really leave...and not fight the vacating.