Converting Nonpayment to Holdover Summary Proceedings: The New York Experience with Conditional Limitations Based Upon Nonpayment of Rent

This Article examines the development in New York law of both the landlord's right to terminate a lease for a tenant default and the tenant's right to preserve his tenancy by curing a rent default. It finds that, despite some cases to the contrary, case law in New York favors the landlord's reserved right to terminate over the tenant's historic right to cure, at least as to commercial tenancies." It concludes that, in both residential and commercial tenancies, landlords should not have this termination right' and that the legislature should enact appropriate legislation to achieve that objective. Part II of this Article will consider the development of the landlord's right to terminate a lease for a tenant default based on the nonpayment of rent, as well as on the nonperformance of certain other lease obligations. Part III will shift to the tenant's point of view, considering from a historical perspective the tenant's right to cure a rent default.

It will trace the right to cure back to the seventeenth-century equity courts and follow its development from a discretionary judicial remedy to a statutory right. Part IV will examine the present state of New York law and will demonstrate that, at least in a commercial setting, courts have subordinated the tenant's ancient right to cure to the landlord's interest in strict enforcement of the lease termination provisions. Part V will urge the recognition and protection of the historic right to cure a rent default and recommend the adoption of appropriate legislative action.' This Part includes the text of a suggested revision of the real property statute.