Being Liable for Rent After Vacating due to Bed Bugs

[volans]

I am trying to break my lease over a violation of the warranty of habitability. Management agreed to break my lease, but only on condition that the apartment gets a new tenant and that I forfeit my security deposit. They hold me liable for rent until then. I’m trying to find a way to break myself out of rent liability, as I have fully vacated the apartment and am no longer living there.

I would like some advice regarding what to do. Up until now, I’ve been given advice to (1) simply give them all the keys I have to the apartment along with a letter explaining why I vacated and just stop paying (and simply countersue if they try suing me, which I’ve been told they likely won’t), (2) proactively sue them either for (a) a rent reduction or (b) a total lease breakage (and potentially risk being placed on a “tenant blacklist”), or (3) try to negotiate with the management company to pay only a couple months instead of the full remaining term until they find a new tenant.

[TenantNet]

Sorry for the delay in replying.

First, why give up a RS unit? I do know how bad bedbugs can be (I had them a number of years ago). I ended up sleeping in a chair in another room for around 10 months. (it was a nice chair). Still, unless you have found another RS unit, that can be a steep increase in rent. I would think twice on that move.

Your question only really comes into play in a court case if the LL seeks rent for the rest of your lease term. If you move out after 18 months of a 2-year term, theoretically the LL could go to Civil or Supreme Court (not Housing Court as you would no longer have possession) to seek the rent for the other 6 months.

That is, except for two things:

1. You would have a defense that the LL must try to mitigate his economic loss (of 6 months' rent) as he must show he made a good faith attempt to re-rent the place at the same or lower rent. Putting the unit on a listing site usually does that, but many LLs don't. See the Lebovitz booklet on the 2019 rent law that discusses this. The link is on the home page of the forum.

In my view, an honest attempt to re-rent must ALSO require proof they have eradicated any and all bed bugs. I would keep tabs on the unit to see if they try to illegally deregulate the place.

2. You would have a defense and counter-claim for the bed bug infestation. But make sure you made every attempt to get the LL to fix the problem, and document everything.

Did the LL agree to allow you to break the lease in writing? Did they list conditions on paper? They say you're liable. I would say that's only their opinion, with the risk of court. If you documented conditions and the LL's negligence, I'd go for it. Your post doesn't lay out all those details (but no need to).

In my view, it's not the LL's call; it's your call. But as I explained above, the LL could come after you. If you have all sort of photos of the bugs, that would help. You can leave whenever you wish; it's not a jail. But yes, the LL could try to seek the remaining rent, and they could [try to] claim the deposit. In my view, if you can show an ongoing infestation and the LL's negligence, that's not a reason to withhold the deposit. But, the real world is such that it would be a fight. Some tenants just don't pay rent the last month, thereby "reclaiming" the deposit. I'm not saying it's legal (or illegal), but some do it and there's a risk.

As to what to do, I'd pick No. 1 ... and make sure the keys are given to the LL or management company, not the super, and have a witness. Get a receipt for the keys if you can -- LLs often claim tenants did not return possession (the keys). Don't fall into that trap.

The likelihood of their suing you? I would not bet on them doing nothing, but it depends on the LL. Large LLs often have lawyers in-house and they will sue tenants for almost anything.

As for No 2 (I think I know which attorney might have given you that advice), it's not right or wrong, but it does require you to do something up-front. Option No. 1 doesn't require you to take the time and expense to bring a suit ... although it might end up with more protections.

As for No. 3, well it depends. To me it depends on if they made any real attempts to clean-up the bugs.

One final thought, if the LL wants to come after you, the statute of limitations is 6 years. They don't have to do it right away.