Owner Didn't Waive Right to Evict by Accepting Rent Payments

Facts: An owner sued to evict a Section 8 resident who had continued as a month-to-month resident with an expired housing assistance payment contract. The owner claimed that occupancy was terminated after it sent a statutory 30-day notice of termination that expired on June 30, 2014. 

The resident claimed that the owner waived termination by accepting rent between the alleged termination of the tenancy and before the resident was served with a notice of the eviction lawsuit. An affidavit of an employee of the county’s department of social services (DSS) stated that a payment was made to the owner on behalf of the resident in the sum of $625 in July of 2014 and was never returned by the owner.

In response, the owner stated that the lease was terminated on June 30, 2014, by service of a 30-day notice. And the resident was served with the Notice of Petition on July 14, 2014. The owner argued that the resident failed to demonstrate that the owner accepted any payment during the window period (July 1-July 14). The rent records demonstrate that four DSS payments were deposited on Aug. 20, 2014, for the months of April, May, June, and July.

Also, the owner argued that even if the evidence shows an acceptance of rent during the window period, this doesn’t require dismissal of the lawsuit. The owner contended that the resident wasn’t aware of the owner’s acceptance of the payments until well after this case was already in court. Therefore, the resident “could not have been under the impression that she need not surrender possession of the premises.”

In response, the resident submitted a record signed by the executive director of the county’s housing agency, which stated that on July 1, 2014, a direct deposit of rent was made into the owner’s account on behalf of the resident. The resident asked the court for a judgment without a trial in her favor.

Ruling: A New York court denied the resident’s request and ordered the eviction case to proceed to trial.

Reasoning: The judge ruled that there was no evidence that owner intentionally waived its right to evict the resident by accepting the two rent checks in July of 2014. The judge noted that there was no duty upon the owner to return the two checks, which were regularly sent to pay the resident’s rent. The owner didn’t demand the rent after service of the 30-day notice or offer the resident a renewal lease. And the owner wasn’t required to allow the resident to reside rent free in the unit.

• 385 Bayview LLC v. Green, January 2016