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Lease Assignment & Duty to Mitigate

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Lease Assignment & Duty to Mitigate

Postby Xyz1234 » Wed Oct 05, 2022 12:20 pm


I am in the process of breaking my lease, and would like to better understand my rights. I am not in a rent stabilized apartment. It is an 8 unit apartment building.

I notified my landlord that I would be breaking my lease at the end of summer. I gave him about a month and a half notice of when I would be moving out.

He moved forward with listing the apartment, and we have been showing the apartment to tenants using a broker.

However, he has been asking for several hundred dollars more a month than I pay, as well as a 2 year lease. I had never been in a two year lease at any point in my time living there, and have about 8 months left on my current lease. The lease terms he has been asking for are really difficult, and it has made it hard to find a tenant. We’ve maybe shown it to 30 or 40 people at this point - around 6 open houses in total. We only got one applicant in all that, whom the landlord rejected in favor of finding someone “more qualified” (that’s all the information I have on that).

On top of that, and I have this in writing via email, he has refused to allow me to find or submit prospective tenants for lease assignment. This is in direct contradiction to what my lease says.

I have recently moved out, but have still payed rent for this month because we haven’t found a replacement tenant.

Given all this, I’m stuck paying rent until he finds someone at his terms, with no option to find an assignment for my current lease terms. This seems like it is both a violation of his duty to mitigate (227-e) and the real property law 226-b.

I’ve called legal aid and am waiting to hear back. I was thinking I could right a letter requesting to be let out of the lease within 30 days, per real property law 226-6, but wasn’t sure if there’s anything I’m missing that could backfire with that approach. The term “unreasonably refuses” seems vague in that law, so I didn’t know if I blanket refusal like I have gotten qualifies as “unreasonable”.

I have been showing the apartment for a month and a half without really pushing back too much on the landlord on these matters, as I’ve been nervous that if I push back he’ll stop showing the apartment all together. He’s really difficult to deal with and often ignores questions around these items in my emails.

Am I understanding these laws correctly? Do I have any options?
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Joined: Wed Oct 05, 2022 12:00 pm

Re: Lease Assignment & Duty to Mitigate

Postby TenantNet » Mon Oct 24, 2022 7:01 am

Sorry for the delay. You say you're not RS, but if you were staying we would suggest you investigate that. In the last 25 years, we believe an overwhelming majority of deregulated units are due to landlord fraud.

We believe your notice to the LL is not a problem (actually no notice is required), but if you did it 45 days ahead of the move-out, then it should not be a problem (you don't say how the notice was given). However, some LL's will insist a lease provision holds. See RPL 226-c, 232-a and 232-b.

It's important to understand that tenants may move out at any time they wish (it's not a prison). The question is if tenants are liable for rent until the end of the lease.

You say he's accepted this and you are showing the unit. If you are paying what the current lease states, then he can't ask for more. Don't pay more.

You say he's been asking for lease terms. This makes no sense. You are leaving, not signing a new lease, correct? You really can't change current lease terms that easily.

If you mean he's asking for additional lease terms for a new tenant, that's different. But understand that the LL's obligation is to re-rent - or seek to re-rent - the unit at the current rent, not. Our view is that would release you from any obligation for the remaining 8 months of rent.

See Lebovits, Part 1, page 39-40.

"Landlord must in good faith, according to the LL's resources and abilities, take "reasonable and customary" steps to rent the apartment; residential only."

RPL 227-e.

§ 227-e. Landlord duty to mitigate damages. In any lease or rental
agreement, excluding any real estate purchase contract defined in
paragraphs (a), (c) and (d) of subdivision four of section four hundred
sixty-one of this chapter, covering premises occupied for dwelling
purposes, if a tenant vacates a premises in violation of the terms of
the lease, the landlord shall, in good faith and according to the
landlord's resources and abilities, take reasonable and customary
actions to rent the premises at fair market value or at the rate agreed
to during the term of the tenancy, whichever is lower.
If the landlord
rents the premises at fair market value or at the rate agreed to during
the term of the tenancy, the new tenant's lease shall, once in effect,
terminate the previous tenant's lease and mitigate damages otherwise
recoverable against the previous tenant because of such tenant's
vacating the premises. The burden of proof shall be on the party seeking
to recover damages. Any provision in a lease that exempts a landlord's
duty to mitigate damages under this section shall be void as contrary to
public policy.

However, I would seek a legal opinion on this as there may be case law out there since the 2019 change in the law.

https://law.justia.com/codes/new-york/2 ... e-7/227-e/

Here's one case that went against a tenant:
https://www.nycourts.gov/reporter/3dser ... _00002.htm

Here's another article, but we believe it's misleading in parts:
https://www.brickunderground.com/rent/r ... moving-nyc

And some more articles: but realize the law changed in 2019

https://www.brickunderground.com/blog/2 ... ak_a_lease

https://www.brickunderground.com/rent/r ... rtment-nyc

https://www.brickunderground.com/blog/2 ... lease_2014

https://www.brickunderground.com/rent/h ... k-my-lease
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