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RPAPL 711(1) creates a safe harbor for the acceptance of rent when a tenant holds over after the expiration of her lease.
Petitioner Rensselaer Housing Authority alleged that respondent Natasha Beverly breached their lease agreement by removing smoke detectors. Petitioner served respondent with notice of the breach indicating that respondent had to vacate the apartment. Respondent had a right to an administrative hearing to contest the grounds for termination of the lease but respondent did not avail herself of this option. Rather, respondent, on the advice of counsel, tendered the rent which was accepted by petitioner. Respondent did not vacate the apartment and petitioner commenced a holdover proceeding under the authority of RPAPL 711 (1). Before the commencement of trial, respondent defended that petitioner’s acceptance of the rent occurred before the commencement of the holdover proceeding and therefore requires this action to be dismissed with prejudice and that she never removed or otherwise tampered with the smoke detectors.
Was petitioner’s commencement of holdover proceeding under the authority of RPAPL 711 (1) have merit?
No. The holdover proceeding was dismissed, but without prejudice for petitioner to file a new notice of termination.
The court held that the holdover proceeding pursuant to RPAPL 711(1) was premature because respondent tenant had the right to possess the apartment at issue until after the date the holdover proceeding was filed. Also, while respondent tenant allegedly breached her lease agreement by removing smoke detectors thus petitioner landlord served respondent tenant with a notice of termination, the court ruled that petitioner landlord's acceptance of rent after the termination date contained in the notice rendered the termination notice void. Because the court held that petitioner landlord had no intention at any time to waive a breach of the lease, therefore, the holdover proceeding was dismissed without prejudice for petitioner to file new notice of termination if it so chose.