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Lease Break - Landlord Duty To Mitigate

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Lease Break - Landlord Duty To Mitigate

Postby nycthrowaway58 » Thu Apr 02, 2020 3:37 pm

We broke our lease 6 months into a 12 month lease due to a new job across the country. Our landlord has relisted our apartment but for $245 more/month than what we were paying. Based on the law linked below, it seems to us that this increased price is not allowed under their duty to mitigate but the landlord says they can list it for whatever they deem to be the market rate. The apartment has now been on the market for 6 weeks and has not been re-let. A lot of that has to do with the Covid-19 situation in NYC but the pricing is also a factor in our opinion.

Do we have any remedy against the landlord? The apartment has been listed as available in some fashion since 2/21/20 and we have not lived in the unit since 3/2/20. We paid March rent and they have one month security but we have not paid April rent yet.

https://www.nysenate.gov/legislation/laws/RPP/227-E
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Re: Lease Break - Landlord Duty To Mitigate

Postby TenantNet » Thu Apr 02, 2020 4:18 pm

Seems you found the correct section. See the following: viewtopic.php?f=3&t=13888 - and look in Part 1 (page 9 of the file - but labeled as page 40).

Before the 2019 law changes, LLs had no duty to mitigate loss of rent and could come after tenants who left early. Of course if the LL re-rented the unit for the same of higher rent, the tenant would then be off-the-hook. Now, the person seeking damages (the LL) has the burden of proof. This section became effective on 6/14/19.

But note that the entire law is facing a number of legal challenges, mostly in the federal courts.

The issue of what is market rate is why God made courts. So far I'm not aware of any decisions on this point. But in the past, if the relet asking price was substantially above what the departing tenant had paid, and if that operated to discourage leasing at the same rent, the tenant could claim lack of good faith by the LL. You are probably correct that COVID-19 has discouraged new rentals.

Note that the LL can seek to rent the place for either the fair market rent, or the lease rent WHICHEVER IS LOWER.

I found this article: https://www.albarticles.com/no-mitigation-rule/
written by a notorious landlord lawyer (Just Google "nys rpl 227-e mitigate"). According to Judge Lebovits' summary, the new provision overrides Holy Props v. Kenneth Cole.

Remedy against the LL? I would think the question is what remedy they might have against you. You paid March and have security that would cover April. Plus for all intents and purposes, the courts are closed for the immediate future. You could continue to pay the lower rent depriving the LL of six months of increases.

Do you know of anything else the LL might be doing to discourage a new rental?
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Re: Lease Break - Landlord Duty To Mitigate

Postby nycthrowaway58 » Thu Apr 02, 2020 5:59 pm

Thank you for the reply and insight, very helpful.

To be clear, the LL continues to hold us responsible for the lower rent amount but has the apartment listed to re-lease at a higher amount which we feel is making it harder to lease the unit to a new tenant and in violation of the mitigation rule put in place in 2019.

We have not surfaced this issue with the LL yet and are deciding how best to approach it
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Re: Lease Break - Landlord Duty To Mitigate

Postby TenantNet » Thu Apr 02, 2020 6:50 pm

A more practical view (not a legal one) is that you will probably lose the deposit.

If the new job is across the country, as you put it, it would be difficult - but not impossible - for the LL to collect on any judgment he might get, assuming you had no assets in NY state. However, keep in mind it might impact your credit rating.

I'm assuming you think the unit is not rent stab. If it were, the rent would be substantially less and he might even owe you money. To find out, you would have to do some research, and then file a case with DHCR, or the court, or use that as a defense in any case the LL might bring against you. Not a recommendation, but something to think about. And of course, any of these course of action would take time, energy and resources from you.

Whether the unit should be RS depends on the building and history of the unit. In some case it might be worth a try, or it might give you leverage.

For a better view of the new law, you could consult with a tenant attorney.
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Re: Lease Break - Landlord Duty To Mitigate

Postby nycthrowaway58 » Thu Apr 02, 2020 7:09 pm

Thank you again for the insight. Our former unit is not rent stabilized - that fact is laid out in the lease documentation we signed.

I think our options here are to surface the mitigation issue with the LL and then go from there. I would imagine that they are having issues with many of their clients this month given the disruption caused by Covid-19
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Re: Lease Break - Landlord Duty To Mitigate

Postby TenantNet » Thu Apr 02, 2020 8:19 pm

You must be new to NYC. The very first thing you learn is that when the LL says the sun rises in the west, it's not so. I would say the majority of units where the LL and the lease say the unit is not RS ... it was probably illegally deregulated. You need to get a rent history from DHCR to start. Granted, if you're moving across the country, you might not want to be encumbered with such a process, but if there's the slightest bit of evidence, that's leverage for you. Talk to your neighbors ... see how the LL operates the building.

"Surface the issue" ... what the heck does that mean?

If you can afford it, I would consult with a tenant attorney. He/she/it probably has a better read on how the phrase you mentioned has been viewed by the courts.
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Re: Lease Break - Landlord Duty To Mitigate

Postby nycthrowaway58 » Fri Apr 03, 2020 11:51 am

We are personal friends with both of the prior two tenants who were both on deregulated leases - each was a tenant for 1-2 years. For the most part, tenants in our building are not long term, a lot of turnover. Regardless, we'll check with the DHCR to get a rent history.

While we were hoping to avoid it, we're now looking into a tenant attorney for further guidance.
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Re: Lease Break - Landlord Duty To Mitigate

Postby TenantNet » Fri Apr 03, 2020 2:45 pm

All that suggests is that two additional tenants were also hoodwinked. Not saying the unit is definitively RS, I'm saying it could be and warrants some due diligence. With high turnover, I would think that's another indicator that some corners were illegally cut.
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