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Breaking a lease due to death - outside NYC

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Breaking a lease due to death - outside NYC

Postby NetComrade » Thu Oct 28, 2010 2:10 pm

Hi,

I have someone very close whose soulmate, and also a co-signer of the lease, passed away due to an accident.

The management company gave 3 options
1. find a sublet
2. give them the option to find someone, but until they do we pay the rent
3. lose a security deposit, and pay 3 months to break the lease (lease started on July 1st)

We tried to speak to them to find some compromise, but they wouldn't budge. What are our chances to try to break out of the lease.

We can't do option 1, because no-one wants to come back to the place for emotional reasons, and can't trust them to do #2, because it's not in their interest to find anyone (and they used to manage a building I used to live in, and my recollection was that they were evil in general).

#3 seems unfair given the situation. Not breaking the lease just for the heck of it. One month's rent (security deposit) seems more reasonable in this situation.
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What does the lease say?

Postby dealing3000 » Tue Nov 02, 2010 12:47 pm

What does the lease say? Most leases should specify the penalty to get out of the lease. Even is cases of death the co-signer is responsible for the remainder of the lease or paying the penalty to leave the lease as outlined in the lease contract. The first option is your best option since finding a sublet and possibly subsidizing it (if needed) allows you to have more control over the situation. Depending on the lease you may not even need to notify the LL of the sublet.

If the person walks away they risk getting sued in court and possibly losing, which means the LL may go after that $$ in garnished wages and other legal maneuvers.

If you really mean than you will not consider 1 and 2 under any circumstances and the penalty to leave is in the lease then you either:

1) walk away and see what the LL does as far as filing suit
2) pay the agreed upon rate as defined in the lease
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Postby NetComrade » Mon Mar 14, 2011 2:56 am

Well.. we sent them a certified letter offering to pay half of what was option #3.

They were supposed to respond within 10 days. We called, but never got any response other than "you'll get a letter from us". In the meantime, we learned that the apartment was rented within two weeks, and we figured they just let it go. No letter was ever received, until recently where a letter came from a collection lawyer for 3 months rent (we already lost the security deposit, of course).

We will dispute, on the basis that we never received any response to our 'offer'. Is there anything else we should be doing? We plan on complaining to BBB and the Attorney General.. What should we providing them other than a copy of our letter and our story?
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Postby TenantNet » Mon Mar 14, 2011 4:29 am

Something doesn't add up here, at least in the way you present things. While obviously you want out of the lease, and you are trying to find an acceptable solution, the fact is you still have the lease until possession is given up or transferred. And as long as you have possession, you are liable for the rent unless you and the landlord come to an agreement, or if you decide to break the lease planning to suffer the consequences or have a defense.

So now you say the place has been re-rented (by the landlord). That cannot legally happen as long as you still have possession. You have the lease, You have possession.

Perhaps you're just describing things incorrectly. What really happened here?
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Postby NetComrade » Mon Mar 14, 2011 9:03 am

We returned the keys, and sent a fax with the intent to break the lease, as well as send a letter on Oct 30th (express overnight).

We did not hear back from the company until now. (In fact, we are still didn't hear from them, but from their lawyer)
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Postby TenantNet » Mon Mar 14, 2011 11:17 am

What did the text of the letter state as to the date of giving up possession? Was it a request to give up possession, or did you actually give it up? Did you give 30 days notice or was it effective Nov. 1? Did you hand deliver the keys? To whom? Did you get a receipt for the keys or can you otherwise prove you returned them?

Do you know when the place was re-rented? How do you know this? Can you prove this?

All these questions are important.
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Postby NetComrade » Mon Mar 14, 2011 11:47 am

TenantNet wrote:What did the text of the letter state as to the date of giving up possession? Was it a request to give up possession, or did you actually give it up? Did you give 30 days notice or was it effective Nov. 1? Did you hand deliver the keys? To whom? Did you get a receipt for the keys or can you otherwise prove you returned them?

Do you know when the place was re-rented? How do you know this? Can you prove this?

All these questions are important.


Thanks for trying to help.. Here's the (edited) text of the letter.. We handed over the keys on Oct 30th to the super, as the letter indicates (no, he did not provide any receipt). We faxed and sent it via certified mail. We know the apartment was rented through other people living in the complex/building. I don't know how we'd go about proving it.

To Whom It May Concern:
Please be aware that <name edited out>, the co-signor of the lease on the apartment died <details edited out> on October <date edited out>. As a result, I am no longer able to continue to pay for the apartment, since I am a student, and <name> provided for the majority of the rent.
I have reviewed your lease break options. I would like to pick option #3, but due to circumstances, I am unable to pay the full three months that you require. I would like to offer half of what you’re asking (a total of three months), <sums edited out>, which I intend to pay as soon as you agree and provide me with necessary paperwork.

I am enclosing your form, and will also send this letter via certified mail. I will move out by November 1st, 2010, and surrender my keys to the super.

Last edited by NetComrade on Mon Mar 14, 2011 12:21 pm, edited 1 time in total.
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Postby TenantNet » Mon Mar 14, 2011 11:59 am

Handing the keys to the Super was probably a mistake. One common landlord scheme is to claim possession was never given up and they'll have the Super lie about getting the keys. Do you have a witness to your handing over the keys? Be prepared (but don't do it until you need ti) to specify date, time and location and do it in an affidavit. You want to get their side of the story first to lock them in their lie -- if that's what they intend to do.

Be prepared to have a death certificate on the deceased. Also consider that the you may need to enlist help from the executor of the estate, assuming there is one. An estate has the same legal rights as the deceased person, including a right to the lease and possession.

I am no longer able to continue to pay for the apartment, since I am a student, and [he] provided for the majority of the rent.


Never give them more information than they need.

You picked number 3, but their failure to respond can be seen as a rejection of your offer. This letter can be seen by the LL as the opening in a negotiation. It is too murky and can be argued a number of ways.

What did the form state? Was it signed?

My other questions ... when was the place re-rented? How do you know it was re-rented and can you prove that?

How and when they reacted -- any actions on their part -- can impact whether they have a viable claim.

What I'm looking for is an unequivocal transfer of possession without all the malarky.
Last edited by TenantNet on Mon Mar 14, 2011 12:30 pm, edited 1 time in total.
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Postby NetComrade » Mon Mar 14, 2011 12:20 pm

I think the letter was a pretty clear indication on what our intent was, and did state that the keys were going to be given to the super (this is also, what I believe, they asked us to do over the phone). There were plenty of witnesses on the key transfer, as it was done right after a group of friends and relatives cleaned out the apartment. I'll need to look into what we did on the form, but as I stated earlier, there was zero communication from the company until now. We did try to reach out to them on more than one occasion, but they insisted they'll contact us by mail.

The place was re-rented.. as I said, I don't know how we'd prove it. This came from the neighbors.
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Postby TenantNet » Mon Mar 14, 2011 12:40 pm

Here's the jist. The LL apparently will be claiming you never gave up possession, and thereby owe rent for the remainder of the lease term. That's why your actions ... and their actions ... are important. LLs do this all the time and tenants do stupid thing that get them into trouble.

If you decide to respond to the LLs attorney, your first letter should be fishing for information from them. See what their story is. Just tell him obviously he must be mistaken because we gave up possession on [date] , we gave the keys to the super and the LL appeared to be OK with it. See what his response is.

Of course that the place was re-rented should get you off the hook, but play it close to the vest at first.

That they have found you is another issue. In some cases tenants are better without leaving a forwarding address. They have ways to find tenants, but make them work for it. Some LLs might not try the scam if they have to work for it.

If you've moved out of state, then you're that much ahead. That makes it difficult (although not impossible) for the LL to come after you (assuming your assets and bank accounts are in the new state).

I would also not be surprised if they also claim damages at this point. But as they re-rented the place within two weeks would go against any such claim. In the meantime see if your former neighbors (the ones who told you about the re-renting) would be willing to back up the re-renting claim.
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Postby NetComrade » Mon Mar 14, 2011 6:53 pm

Thanks.. The letter from the lawyer certainly doesn't explain anything as far as what the money is for. The person in question is not in another state, just in another county. We did provide a forwarding address that they had to respond to, but they didn't bother (and that's how they know of the current address)

So we'll take your advice, and provide minimum information to find out on what grounds they're "collecting debt" and when exactly they billed for anything, including copies of those bills.

Thanks again.
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Postby NetComrade » Mon Mar 14, 2011 7:24 pm

BTW, The company even used a different name as a "creditor" on the letter from the lawyers.

Will just play dumb all together.. For all we know it's some other company trying to pose like the company I know.

Thanks again.
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Postby TenantNet » Mon Mar 14, 2011 8:03 pm

Collection efforts are often outsourced.

The bottom line is that if they have re-rented the unit, that automatically breaks any obligation you might have for rent after that date. That's why it might be important to find out when the new tenants' lease started.

In my opinion, if the LL did any prep work to the unit after you left and prior to the new tenant, that also would not be collectible time. I don't mean sweeping and cleaning; I mean anything they could not have done while you were still in occupancy and for which they could not have started until you returned possession. That would be things like major repairs, painting, replacement of items like carpet, etc.

I would troll with the LL's collection atty, trying to find out what dates they are seeking collection for. If they want rent for, for example, the month of December, then since it's been re-rented, that's not permitted.

Now, one thing to consider. They will likely threaten you, and you must tell them politely to suck it. They might commence a legal proceeding. You have to decide whether or not to respond. If you don't they might win by default. Depending on how evil they are, your job is to convince them that their efforts are fruitless and you will defend yourself. They could very well file court papers and it's no skin off their backs. They are counting on you doing nothing and making their job easy.
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Postby NetComrade » Sun Apr 10, 2011 11:43 pm

The company responded.
They sent a copy of a lease
Breakdown that based on a move in date of Feb 11, and a 500$ "late" fee.

Our response is going to be
1. why is this in debt collection, as we never saw any invoice
2. why we never received any communication to our original letter?
3. why they're slapping a late fee.. although i am sure they can back it up
4. asking for a proof that lease was signed on the place of Feb 11, because we have information that someone moved in there in the middle of November. (btw, that neighbor agreed to sign a letter stating that)
5. asking what the relationship is of the lawyer company to the leasor (e.g. if debt was 'assigned' or 'bought'.. e.g. how do I know they're even legit)

requesting they stop contacting by telephone.... should've done that in the first letter.

P.S.
We are also requesting that the neighbor sign a simple letter like this

"This letter is to inform you that I live across apartment XX, and that I have witnessed new tenants move in on or about November____, 2010."
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Postby NetComrade » Mon May 09, 2011 12:31 am

The lawyers are slimy.. after the question was asked about the penalties, they reduced it to interest of maximum allowable of 9% interest by law (reducing it by a few hundred bucks).

They also don't bother answering any questions, other than listing the money owed.

We have obtained a letter from a neighbor stating someone moved in on such and such.

We are going to demand they recalculate their penalties, and see what happens.

I am sort of lost on what to do if they fail to do so.
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