Does the renewal of a rent-stabilized garage lease/ancillary service vitiate a termination notice?

In Uncategorized on June 1, 2011 by bleakhouses

I think yes, and am currently involved in litigation on the topic.

The tenancy and the garage tenancy originated at the same time.  They have been renewed regularly at the same time through 2010 when the Landlord elected not to renew the tenant’s rent-stabilized lease for alleged “non-primary” residence.

At the same time the Landlord sent the notice of election not to renew (Golub) and termination it sent to the tenant a separate  rent-stabilized renewal lease for the garage spot.  The Landlord listed, on the garage renewal, the apartment address that it has said the tenant is not occupying as its primary residence.

Ancillary services are defined by the Rent Stabilization Code as:

(3) Ancillary services. That space and those required services not contained within the individual housing accommodation which the owner was providing on the applicable base dates set forth below, and any additional space and services provided or required to be provided thereafter by applicable law. These may include, but are not limited to, garage facilities, laundry facilities, recreational facilities, and security. Such ancillary services are subject to the following provisions:
(ii) Where an ancillary service is provided to a tenant pursuant to a lease or rental agreement separate and apart from the lease or rental agreement for the housing accommodation occupied by the tenant, the tenant shall not be required to renew such lease, or rental agreement, for the ancillary service upon the expiration of such lease or rental agreement.
We have argued as follows:
-the lease for the ancillary service is separate and apart from the lease for the housing accommodation.
-the expiration of the ancillary service lease  allows for the tenant’s option to renew, on the same date as the lease for the housing accommodation.
-whereas the code provides specifically for the tenant’s election to renew the ancillary lease upon the expiration thereof (matching the election right for the lease for the housing accommodation), it does not provide for a concomitant landlord’s election.
-thus, the code can only be read as linking the ancillary service directly to housing accommodation.
-therefore, when, the landlord, on one hand, serves the tenant with a renewal lease for the ancillary service, and subsequent thereto, and on the other hand, serves the tenant with a notice of non-renewal for the housing accommodation it is sending the axiomatic “mixed signal” vis a vis the renewal of the tenancy.
-the law is clear in regard to such “mixed signals” and provides that the lay person, tenant, may not be charged with the obligation of interpreting the meanings of the contradictory actions of the landlord and that the termination shall be deemed vitiated and ineffective.
We are awaiting a decision on this and will report back when we get one.



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