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Damages Required to Pay Landlord During Damage Mitigation

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Damages Required to Pay Landlord During Damage Mitigation

Postby NYC_Former_Tenant » Wed Oct 21, 2020 8:40 pm


I currently have a lease in Manhattan that, for many unforeseen circumstances, I am no longer able to comfortably live in any more and lasts until May 2021. I vacated the apartment and my landlord is telling me that, as it is written in my lease, I have defaulted. I don't dispute this, even though it seems weird that if I continue to pay rent I will have defaulted.

My question is, assuming I do default and the landlord is required by law to attempt to mitigate damages, what damages am I liable to pay? The rent will likely be lower due to coronavirus, so I understand I need to pay the difference in rents. They also use a broker, so I understand that I will need to pay a broker's fee.

That being said, the landlord has also claimed I need to pay for application fees as well as any concessions they offer, such as free months of rent. I find this hard to believe, especially if they just offer 7 months free rent and do a 18 month lease, then I am paying an exorbitant amount of money.

Would someone be able to help me understand my rights? Are they only legally entitled to the broker's fee and the difference in rents?

This is the official language in the lease:

C. Whether the Apartment is re-rented or not, Subtenant must pay to Owner as damages:

(i) the difference between the Rent in this Sublease and the amount, if any, of the rents collected in any later sublease
of the Apartment for what would have been the remaining period of this Sublease; and
(ii) Owner’s expenses for the cost of getting Subtenant out and re-renting the Apartment, including, but not limited to,
putting the Apartment in good condition repairing damages, decorating and/or cleaning the Apartment for re-rental,
advertising the Apartment and for real estate brokerage fees; and
(iii) Owner’s expenses for attorney’s (except in the event of a default judgment).

Thank you very much!
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Re: Damages Required to Pay Landlord During Damage Mitigatio

Postby TenantNet » Thu Oct 22, 2020 12:27 am

As a non-rent stabilized tenant, you do not have to actually live in the unit. However the lease is a contract and you are generally obligated for those payments until the end of the lease. I don't see how the LL can claim a default if you're still paying rent. In such a case, you would still have possession (just sleeping elsewhere).

There are exceptions to rent non-payment or leaving early. For example, if the LL defaults due to significant bad conditions or lack of services, that might be a reason that would hold if the case ever got to court.

COVID might be a reason if perhaps the owner was negligent in cleaning, enforcing wearing of masks, etc. (look at CDC guidance). Although I don't know of any cases on that ... and of course, the courts are closed, so we might not see case law on that for awhile.

There is a difference between not paying rent (and still living there), and actually moving out where the LL accepts possession (i.e., turning over the keys). A lot might depend on what you actually told the LL was your reason(s) for moving.

Then the new rent laws require the LL to mitigate the loss of the tenant (if you moved out). We've discussed that elsewhere on this forum. But as to damages, that probably would depend on the facts. At no point would it be more than the rent, except maybe if the lease provides for penalties, etc. If he re-rents the place at the same or higher rent, then your obligation - if any - would cease at that point. For a lower rent, then the difference might apply (i). Mitigation attempts also depend on the facts. Did he place classified ads in a local paper? Did he post notices elsewhere? How did he attempt to mitigate, and can it be proved?

I don't know how broker fees enter into this type of issue. Is the broker's fee discussed in your lease? Being non-RS, a lot of any rights you might have would depend on the fine print of your lease. So read that carefully, all of it.

And all the other claims he's making, in my opinion, they are bogus. If there are clear damages (not what the LL invents), then your deposit would cover that. All the other stuff, i.e., painting and re-renting, the LL would have to do that anyway at the end of the lease if you moved out at that point. With your current move-out, then he will be doing it just a few months earlier than expected.(ii)

Attorney fees (iii) if it goes to court, but that depends on what the lease says about that elsewhere in the lease. I don't believe that one line is sufficient to establish tenant liability for attorney fees (and only if the LL won in court).

Having said all that, I would start at the point of the rent x number of months and go from there. It can be reduced if re-rented. Keep in touch with neighbors who can tell you what is really going on. LLs often forge documents to make it appear the place has not been re-rented.

Everything else can be negotiated. And I would just say no to any of that. And if you do have bad conditions or lack of required services as possible defenses, you should probably memorialize them.

If it starts to get messy, you can also consult an attorney.
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