Landlords Note: Landaverde 5-Day Rule May Apply to Golub Notices

As sometimes happens when courts attempt to clarify regulations, there can be a bit of confusion, as lower courts attempt to apply a groundbreaking ruling to cases that come along afterwards. And so it is this year in landlord/tenant decisions.

In June, the Court of Appeals for the State of New York held that building owners that serve notices to cure by mail must add 5 days to the cure period, basically to make sure the tenant had the full 10 days to cure. In other words, the extra 5 days were to make sure the notice had time to arrive. Prior to that decision, the 10-day notice to cure started on mailing, and however many days the tenant ended up with after receipt was all the time they got to fix whatever the problem was the landlord was complaining about. If the tenant failed to cure, then a notice of termination would be sent.

It was a decision that had two judges writing dissenting opinions, setting forth the contrasting opinion that, if the legislature had wished to start the notice time from receipt of notice instead of mailing of notice, it could have said so straightforwardly.

The case, ATM One v. Landaverde, 2 NY3d 472, has now been followed this month by three cases, all involving Golub notices, which are notices of nonrenewal of lease that landlords send to tenants in rent stabilized apartments if the landlord does not intend to offer a renewal.

There is no cure aspect to a Golub notice, as there is nothing a tenant can do to alter the effect of the notice, as it will either provide grounds for non-renewal or it won't.

Still, the tenants in all three cases filed suit, contending that the 5-day rule applied. That may seem petty, but if a Golub notice is defective, a renewal lease must be offered. The decisions in the cases were mixed. The judges in two of the cases did not tack on the extra five days, and one judge did.

In Lynch v. Dirks, the judge noted the regulatory silence regarding completion of notice and ruled that where the "regulatory scheme . . . does not say when service of a notice is complete," and all other factors are essentially identical to those in Landaverde, "under a virtually identical regulation, where the legislative and regulatory purpose is the same", why shouldn't the 5-day rule apply?

In the other two cases, the court made a distinction based on how much time a tenant needs to take action, the greater length of time afforded by a Golub notice, and the fact that there is nothing for a tenant to cure in the case of a Golub notice, as opposed to a notice to cure, where the tenant is asked to take steps to cure whatever the lease violation alleged may be. The equities are just not the same when you have 90 days instead of 10, they felt.

The next question is, does the Landaverde decision apply to 7-day termination notices? What about substituted or conspicuous place service? Some might argue that it would apply to any notice sent to a tenant by mail.

In light of the confusion, landlords are well-advised to speak with their attorneys and to craft a carefully timed course of action in any case where a notice to cure or Golub notice must be mailed to a tenant. It is, in the currently unsettled picture, the prudent course.

http://www.law.com/jsp/nylj/PubArticleNY.jsp?id=1104154531016 (sub req'd)

Landaverde slip opinion:
http://www.courts.state.ny.us/reporter/slips/16304.htm