[RPPTL LandTen] Brain Teaser for the Landlord Tenant Committee

[Chuck Hoskin]

Jeffrey:

The 15 day notice would be for termination of the tenancy on different grounds and therefore would not conflict with or supersede the three day notice.

The only possible drawback is that the tenant may set up an estoppel argument against you if you try to accelerated future rent under the lease.  You would be acknowledging that there is no lease.  You would also need to amend your Complaint based upon termination at the end of the term.

Good luck.




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________________________________
From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Jeffrey Mazor
Sent: Friday, June 18, 2010 2:48 PM
To: landten at lists.flabarrpptl.org
Subject: [RPPTL LandTen] Brain Teaser for the Landlord Tenant Committee

This is a brain teaser and I hope someone can help. I started my written lease-based commercial action for possession with a standard Three Day Notice.  Final Hearing won't be for months and in the meanwhile, the defense has denied the lease and implied that the tenant is in possession pursuant to a verbal month to month rental agreement.

To protect against the possibility of my Three Day Notice being ruled defective under a verbal rental agreement, I would like to deliver a 15-Day Notice of Termination which I would want to rely upon if the Court accepted the verbal rental agreement argument.  However, I am concerned about the general rule that a second notice will wipe out an earlier notice.

Possible solutions?

1.         Would some kind of conditional-language Notice of Termination work?  It might say something like "This Notice supplements but does not replace the Notice to Pay or Vacate previously delivered to the tenant, and shall be effective only if the court rules that the Notice to Pay or Vacate is ineffective."

2.         I could file a Motion asking for an order granting leave to deliver a Notice of Termination and finding that it will not supersede the Notice to Pay or Vacate. At that hearing, hopefully, the court would force tenant's counsel to commit to one position or the other.

I would appreciate any input or thoughts you may have.

Very truly yours,


Jeffrey R. Mazor, Esq.




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