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Co-tenant breaking lease early. Landlord says...

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Co-tenant breaking lease early. Landlord says...

Postby CCtenshi » Sat Mar 26, 2022 11:47 pm

I'm on a shared lease with other co-tenants, in an unregulated unit in a building with two residential units and a commercial unit. One co-tenant informed us that they need to re-locate out-of-state in the middle of the lease. Even with the co-tenant moving out, the remainder of us on the lease want to stay where we are, and ideally, would like to bring in an occupant to help share the rent burden once the co-tenant departs.

The leaving co-tenant said they've spoken with the landlord already about needing to vacate and was presented with two options: 1) the landlord would be open to releasing the leaving co-tenant from the lease but the landlord would then terminate the lease/tenancy for all of us who are on the lease, or 2) the leaving co-tenant remains on the lease. Landlord also said that they would not allow for subletting or assignment. Something not discussed but is stated in our lease is that adding an occupant to the premises must be approved by landlord.

Concerns I have that I would appreciate anyone's advice or perspective on:
#1: Has anyone ever experienced one co-tenant asking to break lease, even if the others have not agreed to do the same, result in the landlord terminating the entire lease for everyone? Is that allowed?

I'm worried because the leaving co-tenant has an interest in getting off the lease and be absolved of any legal responsibilities, and we speculate, the landlord has an interest in terminating all of us since they could re-rent the property at a higher rate coming out of the pandemic.

Our lease does have a modification clause but doesn't say anything about what happens if a single co-tenant wants to be released from lease early.

#2: I've been doing a lot of reading about New York Real Property Law §235(f) "The Roommate Law" and how landlords cannot restrict occupancy of the premises. There are clauses in the lease that could violate that statute. Should the tenants who are staying pushback on these clauses and let the landlord know that they can't restrict our ability to bring on an occupant/roommate, if the co-tenant permanently vacates?

#3: Would it be advisable to get a lawyer right now, even though nothing has happened yet and no rights/contracts have been violated?

The other co-tenants and I are still trying to wrap our heads around what we heard, and so haven't spoken directly with the landlord yet regarding the co-tenant leaving and where that might leave the rest of us. Any advice on how we should approach this whole situation would be welcomed and appreciated.
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Re: Co-tenant breaking lease early. Landlord says...

Postby TenantNet » Sun Mar 27, 2022 7:07 am

For purposes of this discussion, you aren't looking at whether or not the unit was legally deregulated. (actually with only two residential units, it would never have been regulated). So that's not an issue here.

I'm assuming that all "co-tenants" are actually co-tenants named on the lease as such, and not just roommates, sublets or whatever.

First, look at your lease and read the fine print, all of it. Look for a phrase that says something like "joint and several." What that means is if the lease has more than one tenant, and one moves out, the remaining tenants are still responsible for the total rent.

Landlords can still come after any or all of the tenants even if you all move out. The landlord can choose who to come after. Usually that has to do with who is the easiest to find and sue, and who might have the resources to cover the lost rent for the remainder of the term.

And actually the tenant who moves out could still be sued by the LL, but usually not as you are still there and still must pay the total rent. And - I'm not sure about this - but it's possible the remaining tenants might be able to seek the lost rent from the tenant who leaves, even after they leave. Check with an attorney on that.

There were changes to the law in 2019 that required a LL to attempt to mitigate their economic loss if a tenant moves out, but I think that means if all tenants leave, not just one of two, or one of three, etc.

As you suggest, you can bring in an occupant that could help cover the lost rent, but that person would not be a co-tenant (i.e., just a roommate); you and other remaining co-tenants are still responsible.

On the options above, the LL can't just terminate the lease for the rest of you. It's a contract and as much as it binds you to be responsible for the rent, it also binds the LL for the remainder of the term. The LL can decided to not renew the lease, but they can't just terminate it in the middle of the term without cause, i.e., did you violate the terms of the lease, or has the rent not been paid. And of course, the LL would have to litigate this if you choose to fight it. And they would have to give proper notice (they often get that wrong).

NYS law does allow for subletting for roommates (not sure about assignment in unregulated tenancies). There are conditions and a process for each of them, but they do exist. Research those on this forum and on this site. The easiest for you would likely be to get a roommate ... the LL can't really [legally] object to a roommate despite what it might say in the lease. But remember, you are still responsible for the rent, not the roommate.

In my experience you don't even have to tell the LL you have a roommate. If the LL lives on-premises, they will find out soon enough, but I would wait until they find out. I wouldn't push back unless the LL raises a stink.

Be careful about putting anything on paper as that can come back and hurt you. You can document all correspondence, mail or email, including method and timing of delivery (postmarks). You can even record phone conversations. That's legal to do, but might not be admissible as evidence in court. Whatever you do, do it with the expectation that it might be heard or seen in court some day.

However, the LL can ask for the names of all people living in the unit, and that includes any roommate. AFAIK, the only information you have to give the LL is the name of the roommate ... no other information. That's why they call it the "live-in-lover-law," it does not matter what the nature of the relationship is between the roommate and the lease tenant(s).

If they object to a sublet, they have to go to court.

Having said all that, you have to decide if you want to continue to live there after the lease expires. If so, you have to figure out a way to negotiate and come to an agreement with the LL. You hold some cards, but so does the LL.

As for the LL's interest and ability to re-rent at higher rates, you have to look at how new leases are going in your neighborhood. Some areas are more attractive than others. You also have to consider how many months are left in your lease, and if you want to renew - even if the LL raises the rent.

It might be premature to get an attorney, although you can always consult with one before putting one on retainer. I would see where this goes; there might be a solution that is agreeable to all sides.
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