Can a landlord re-take premises without first getting a warrant?

Real Estate Weekly, July 14, 1999 by Richard Claman

Our firm is representing the new tenant in its pending appeal from the Appellate Term to the Appellate Division in Park Briar. A key point we have tried to make is that in Park Briar, the futility of a re-possession order is clear and indisputable, because the lease there had expired by its terms: the 10-year term was over. Lease [paragraph] 17(2), by contrast, focuses on conditional limitation terminations and rent defaults.

Often, these present contested issues: the tenant may, for instance, be correct that the landlord made a mistake in calculating some additional rent charge. In such cases, it may be difficult for a landlord to establish futility or other equities, and courts may be inclined, as an interim matter, to order the old tenant immediately reinstated pending a resolution of the merits of the alleged default. (The landlord will then in effect, be in a situation where it is subject to the detriments of a "Yellowstone"-type injunction, without any of the benefits of the conditions that courts frequently impose upon tenants in a "Yellowstone" action.)

In short, Lease [paragraph] 17(2) as written is contrary to statute, and focuses on contexts where the landlord is least likely to successfully employ or risk self-help. The foregoing suggests that Lease [paragraph] 17(2) might, however, be usefully modified.

Modifying Lease [paragraph] 17(2) by Adding a Notice Requirement is Counterproductive

One common modification of Lease [paragraph] 17(2) is, instead of saying that the landlord may re-enter without notice, to say that it may re-enter in the event of, e.g., a rent default, on 5 or 10 days' notice.

The problem that then arises is that when the landlord commences a routine nonpayment proceeding, the tenant will argue that, since Lease [paragraph] 17(2) also contains a reference to re-entry by summary proceeding, the additional notice added by such modification must also be given prior to and in addition to the standard RPAPL [section] 711 3-day notice!

This tenant's argument should not, in a commercial case, in our view, be accepted, because the [paragraph] 17(2) right of re-entry is, fairly read, separate from and in addition to the statutory right to a warrant; and there is authority in favor of the commercial landlord. See, e.g., New Green 1140 Realty, LLC v. Doros & Brescia, P.C., L&T No. 92230/98 (Civ. Ct. N.Y. Co. - decision dated 2/4/99), explaining:

"The statutory rent demand is a condition precedent to the maintenance of a nonpayment proceeding which cannot be waived by the parties unless the parties' intention is expressly stated in the lease. See 96-18 43rd Avenue Corp. v. IBT Industries Ltd., NYLJ, 5/28/91, p. 32, c. 4 (App. Term, 2d & 11th Judicial Districts). Commercial entities represented by counsel are free to adopt notice requirements in variance with RPAPL 711, but their intent to do so should be expressly stated in the lease (Four Star Holding Co. v. Alex Furs Inc., 153 Misc.2d 447 - App. Term, 1st Dep't 1992).

A lease is subject to the rules of construction which are applicable to any other agreement (Parker 24 Commercial Associates v. Siera Restaurant III Corporation, NYLJ, 12/8/98, p. 25, c. 1 - App. Term 1st Dep't). A court should apply the familiar principles of construction, which prefer an instrument that avoids inconsistencies and gives meanings to all of its provisions.