Schwartz v. Weiss-NewellSchwartz v. Weiss-Newell
When is a demand not a demand? This litigation brings into sharp focus a response to this oftentimes perplexing question.
Although there has been a plethora of fully reported, mini
It is basic landlord-tenant law that a рetitioner, in order to maintain jurisdictionally a nonpayment proceeding, must prove either that a rent demand has been made or that a three-day notice has been proрerly served (Real Property Actions and Proceedings Law, § 711, subd [2]; Tolman v Heading,
The exact wording of the subject statute, subdivision 2 of section 711 of the Real Property Actions and Proceedings Law, reads, in pеrtinent part:
"A special proceeding may be maintained under this article upon the following grounds:
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"2. The tenant has defaulted in the payment of rent, pursuant to the agreement under which the premises are held, and a demand of the rent has been made, or at least three days’ notice in writing requiring, in the alternative, the payment of the rent, or the possession of the premises, has been served upon him as prescribed in section 735”.
But what is a proper "demand of the rent”? In the instant special proceeding, petitioner-landlord seeks recovery оf monthly rental in the sum of $64.54 for each of the months of April, May and June, 1976. As to the evidence presented of the demand in haec verba in issue, petitioner’s witness testified briefly on direct examination that in early May, 1976: "I mentioned to him [the tenant] that he was late in rent and would he pay some.” On cross-examination, the said witness added that he told the tenant only that: "You know you owe us some rent.” In responsе, the tenant is alleged to have said merely that: "My attorney is handling the case. See my lawyer.” Finally, the landlord’s witness stated that he had no
At the conclusion of the landlord’s presentation, the tenant also rested and moved to dismiss the petition upon the ground that there had been a failure of proof with respect to the demand, a prerequisite to maintenance of the cause. The tenant contended specifically that, not only was the instant demand completely insufficient, but also a proper verbal demand pursuant to the statute requires, in effect, the same recital that would be included in a written three days’ notice (see Rasch, Landlord and Tenant [2d ed], § 1096 — Form of Statutory Three Days’ Notice to Pay Rent).
On the other hand, the landlord contended simply that the quoted words constituted a legally adequate demand.
In my view, however, a correct determination lies somewhere between the two divergent views.
Initially, "The demand required by such section (now Real Property Actions and Proceedings Law, § 711, subd [2]) is a personal demand; that is, one made to the tenant personally” (Tolman v Heading,
Moreover, in the actual words used in the demand, it is not necessary that the precise sum of rent due be demanded (Moore v Coughlin, 127 App Div 810, 812; Sheldon v Testera,
In the Durant Land Improvement Co. case (supra) cited prominently by a leading commentator (see Rasch, Landlord and Tenant [2d ed], § 1094), but incorrectly, in my opinion, for the broad proposition that a personal demand for rent need not contain any amount at all, the quoted verbal demand in that case was solely for the "amount due for rent.” Nevertheless, this demand was permitted in the Durant рroceeding only upon the special circumstances involved, as the court explained, "that the amount due had been ascertained and determined by a judgment between the рarties, and that of this judgment the respondent (tenant) had actual notice” (Durant Land Improvement Co. v Houston Elec. Co., supra, at p 183). The law has evolved far beyond this case since 1893.
Accordingly, what are the recognizable guidelines thаt can be gleaned from the discussion heretofore? "The purpose of such proceedings is to enforce a forfeiture of an interest in real property incurred by the tenant by reason of his failure to comply with a condition upon the performance of which the continuance of his estate is predicated. In view of the grave consequences following such a forfeiture, it has always been the policy of the law to insist that he who proposes to take advantage of it should seek out the person against whom it is sought to estаblish the forfeiture, and demand of him a performance of the condition in unequivocal language, and under circumstances which would place that person immediately in a position to satisfy the demand and save his estate” (Zinsser v Herrman,
A proper demand for rent must fairly afford the tenant, at least, actual notice of the alleged amount due and of the period for which such claim is made. At a minimum, the landlord or his agent should clearly inform the tenant of the particular period for which a rent payment is allegedly in default and of the apрroximate good faith sum of rent assertedly due for each such period.
A simple, but complete and informative, statement such as: "I want the $100 per month rent that you owe for June and July” should suffice, or more crudely put, but equally satisfac
On the other hand, I do not agree with the tenant that, in оrder to constitute a proper oral demand for rent, the full, legislatively prescribed wording of the usual three days’ notice need be verbally recited by the landlord to the tenant. No nеed appears in law or logic for a verbalization of all of the detailed language of such written notification.
The personal demand required by the statute (Real Property Aсtions and Proceedings Law, § 711, subd [2]) is "for the payment of the rent absolutely, as distinguished from the three days’ notice to pay or surrender possession of the premises” (Tolman v Heading,
Furthermore, this difference in written notice and oral demand has long been a particularly practicаl legislative approach, since it is most doubtful that, under usual circumstances, the ordinary lay landlord or his agent would or could express orally the stated alternatives each time a normally heated demand for rent was made. In addition, in the personal demand, the landlord or his agent is immediately available to the tenant to answer any of the tenant’s questions with respect to the demand for rent or to enlarge upon the practical ramifications of a continued default in payment, if the tenant so inquires. The written notice offers no such advantаges and must, therefore, immediately acquaint the tenant fully with the most serious consequence of continued noncompliance.