Follow Seven Dos & Don’ts When Preparing and Delivering Rent Demands
Before you can sue to evict a tenant for not paying the rent, you must send the tenant a legal notice known as a “rent demand.” In it, you ask the tenant to pay the rent owed and give him a chance to pay before starting a nonpayment proceeding. Although this seems simple enough, a surprising number of nonpayment cases get thrown out based on a rent demand that wasn’t properly prepared or delivered. To help you, here are seven Dos & Don’ts to follow when preparing and delivering rent demands to tenants.
DON'T Make Oral Rent Demand
Before the Housing Stability and Tenant Protection Act of 2019 (HSTPA) became law, an owner had to make a demand to pay rent three days before starting a nonpayment proceeding. Oral demands were permitted, but if written, the rent demand must have been served and tenants had five days to answer.
Now, with the HSTPA, oral rent demands are no longer permitted. The three-day rent demand notice is increased to a 14-day notice and must be given to the tenant under the service of process rules in Real Property Actions and Proceedings Law (RPAPL) §735.
DO Send Delinquent Notice within Five Days
Before the HSTPA, other than the statutory three-day rent demand, nothing required an owner to notify the tenant that rent wasn’t received. Now, residential tenants must be notified by certified mail within five days that rent wasn’t received on the due date. Without this notice, a tenant may raise as an affirmative defense to a nonpayment proceeding the failure to provide this notice [Real Property Law (RPL) §235-e].
In addition, the HSTPA requires owners to maintain records of cash receipts for at least three years; rent receipts must be provided upon the tenant’s request or if rent is paid by cash or any form other than personal check. If payment is made in person, a receipt must be given immediately. And if payment isn’t made in person, a receipt must be provided within 15 days.
DO Use Tenant’s Full Name
Make sure the tenant’s full name appears in the rent demand. Include the tenant’s middle initial, if the tenant uses one, and any “junior” or “senior” designation. It’s possible that more than one tenant with the same name may live in the building. By including the tenant’s full name and any other identifying features, such as the apartment number, you’ll be able to avoid confusion and possible challenges to your nonpayment case.
DON'T Include Late Charges in Monthly Breakdown of Rent Owed
A “rent demand” warns the tenant that you want the overdue rent, and that if the tenant doesn’t pay, the tenant can be evicted. The rent demand must tell the tenant the months and amounts of rent that the tenant owes. Remember that it must be in writing and be given to the tenant at least 14 days before you can start the case.
In the rent demand, give a detailed, month-by-month breakdown of the rent the tenant owes, along with a separate breakdown of any additional charges you’re entitled to collect. Additional rent can include water charges or a portion of the utilities, for example, as long as these charges are included in the rental agreement. Additional rent can’t include money you’re owed by the tenant that’s not related to the rent. Additional rent can’t include late charges, court filing fees, or attorney’s fees, even if the lease says these are part of the rent.
Prior to HSTPA, a residential lease could include provisions for “added” or “additional” rents, such as late and legal fees. An owner was able to seek such rent in a summary nonpayment or holdover proceeding. A rent-regulated tenant was subject to a money judgment but not a possessory judgment for not paying the additional rent. However, post-HSTPA, residential rent is defined narrowly to include only the amount charged for the “use and occupation’ of the space: “No fees, charges or penalties other than rent may be sought in a summary proceeding.”
To collect charges other than rent, owners must commence a plenary action or more formal trial, even if those charges are provided for in the lease. Note that summary proceedings are generally shorter than plenary proceedings and rarely involve pre-trial discovery.
DO Use Professional Process Server to Deliver Written Rent Demand
If you send the tenant a written rent demand, it’s often best to have a professional process server deliver it. According to RPAPL §711(2), you must deliver a written rent demand in the same way that you deliver court papers to a tenant. It says a written demand for rent must be made with at least 14 days’ notice for requiring either payment of rent, or possession of the premises, served as prescribed in §735 of the RPAPL. Section 735 requires service by any of the following methods:
- Personal delivery;
- Delivery to a person of suitable age followed by mailing; or
- Affixing to the door of the residence followed by mailing.
This means that you, your employee, or someone you hire must deliver the rent demand personally to the tenant or use the “nail and mail” method of delivery. Both of these delivery methods can get complicated and may be challenged by the tenant in court. So if you expect that the tenant won’t pay the rent due after getting the rent demand and will fight you in court, using a professional process server is especially important. The process server should know exactly what to do for the delivery. And if the tenant challenges the delivery, the process server should be able to testify convincingly about it in court.
DO Check Lease Notice Requirements
Check your lease to see what requirements it sets for delivery of a written notice to the tenant. According to RPAPL §711 (2), your rent demand notice must give the tenant at least 14 days to pay the rent before you can start the eviction case. But your lease may contain stricter notice requirements. If so, you must comply with the stricter lease notice requirements. For example, if your lease requires you to give 15 days’ notice, you must give 15 days’ notice instead.
DO Deliver Rent Demand to Each Tenant Named on Lease
You must deliver a rent demand to each tenant named on the lease. You don’t need to deliver the rent demand to apartment occupants who aren’t named on the lease (for example, roommates or subtenants).
Keep in mind, however, that you should list any known occupants on the nonpayment petition, even if they’re not named in the rent demand. You want to be able to evict these occupants too, if the tenant doesn’t pay the rent owed.