Articles

The death of the “lockbox” claim in a holdover.

In Uncategorized on June 1, 2011 by bleakhouses

It is truly amazing how the practice of law really is “practice” meaning that you learn and improve on a regular basis.

Today, I was reviewing the progress of a new (very interesting) case with a client, and was floored by a comment of my client’s that lead to the thought that lead to this post…I’ve been practicing almost 20 years and never saw things as I did today.

The client is a tenant in a non-primary residence, rent-stabilized holdover (for those who don’t know, a very “hot” case).  There are a litany of great defenses, one of which is groundbreaking and likely to be the deciding factor in the case (I will post about later) so this issue is likely never to be ruled upon.

None the less, my client is an unnamed “Doe” who claims tenancy and has been paying rent on personal checks in her name, at the apartment address, since the inception of the 18 year tenancy.

When I pointed this out, in settlement conference, to the Landlord’s attorney remarked (axiomatically) “all those payments go to a lockbox,” thus positioning his client for a defense to our “waiver/tenancy by estoppel” argument.

I explained this to my client to which she replied:

“Thanks Tracy. I’ve mailed the rent since December to this “lock box” and they haven’t cashed it. I guess the “lock box” is just a little brighter than they claim;) ”

I read the above remark and though “wow!  I’ve never seen it that way.”

The point is, for X years prior to the commencement of the proceeding the Landlord claims ignorance by lockbox, but the day they elect to terminate the tenancy they become smart enough to vet this tenant’s check from the lockbox and refuse to cash it, or to return it.

Therefore, the “lockbox” claim, always alleged to be a “convenience” for the landlord and the tenant alike, is really a legal artifice created by the lawyer for the purposes of excusing conduct detrimental to the client.

I can’t wait to raise this claim in a case and see what happens.  I don’t think it will happen in this case though.

Feel free to contact me if you wish to discuss the matter further.  I can be contacted on my linkedin page here:   http://www.linkedin.com/home?trk=hb_tab_home_top

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