Archive for the ‘Landlord & Tenant’ Category
Arrangements whereby custodians, porters and other types of employees occupy apartments at buildings where they perform services are legal, indeed common. Buildings and management must take heed that appropriate tax filings are performed, particularly in case in which occupancy comprises all or part of the compensation package afforded to employees who perform services for the building. What happens, however, when the services cease because, for example, the employees is terminated, resigns or passes away? Can you evict the former employee?
The answer to the question above depends in large part upon the nature of the relationship between the occupancy and the employment. If the occupancy is incidental to the employment, then there is no landlord-tenant relationship and the occupancy ends upon termination of employment. In this case, the owner or managing agent may pursue eviction if the former employee does not vacate voluntarily. In contrast, if a landlord-tenant relationship exists independently of employment, then absent other causes, the employee is entitled to remain in possession despite termination of employment.
How does an owner or managing agent know whether the former employee must vacate or not? Courts have looked to the following factors, among others:
Did the employee occupy the apartment before his or her employment commenced?
Does the occupancy constitute part of the employee’s compensation package, or is rent deducted from the employee’s payroll?
Did the parties agree that occupancy ends upon the termination of employment?
In addition, many who serve and reside in buildings are employees of the managing agents. If such employees may they nevertheless retain their apartments at the building itself? The answer is not so clear given mixed conflicting precedent from the Courts.
Regaining possession of the apartment is also subject to whether termination of the employee is legal. A discharged employee may pursue a grievance with his or her union, or commence litigation based upon allegations of employment discrimination or other types of wrongful discharge. Such proceedings will suspend efforts to evict the employee. An employee who is ultimately found to have been wrongfully terminated will likely be able to retain employment and retain possession of his or her apartment.
The foregoing presents just the basic questions management and boards of directors must consider in treating building employees. With over twenty years in landlord and tenant, employment and labor and various other types of commercial litigation, attorneys at Goldstein Hall PLLC are fully equipped to provide you advice and counsel and, if need be, representation in litigation should the need arise. We invite you to call upon us.
Written by: Philip J. Onorato, Member