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No landlord obligation to mitigate losses?

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No landlord obligation to mitigate losses?

Postby willoughby5 » Wed Feb 22, 2017 12:32 pm

I am from overseas and have just lost my job after being in a 12-month contract apartment for only 5 months, and will therefore have to leave the US. I have contacted the landlord and asked to lease break after the sixth month, offering to forfeit my deposit and pay another month's rent on top, but unfortunately they have refused my offers and want me to continue paying rent until another tenant moves in - which will seemingly not be before they end of my contract as they are not bothering to re-advertise and will not help me in any way.

1. I understand that in NYC the landlord does not have any obligation to mitigate their losses if I move out. Does that mean that if they decided to go after me, an NYC court would be likely to award them the full six months of remaining contract rent, even though I will have moved out by then?

2. There is also a clause in the contract which seems to imply they could take double rent, but it is photocopied unclearly with some words missing at the top so I am not sure of the exact meaning:
"Landlord has no duty to re-rent the unit. If Landlord does re-rent, the fact that all or part of the next tenant's rent is not (...unclear...) the next tenant's rent. Tenant must continue to pay rent, damages, losses and expenses without offset."

Could this really mean that even if they find a new tenant, they still expect me to go on paying rent?! Wouldn't this be illegal, even in NYC?
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Re: No landlord obligation to mitigate losses?

Postby TenantNet » Wed Feb 22, 2017 2:43 pm

When you sign a lease, that is a contract where the tenant is generally obligated to pay the rent each month for the length of the lease. And the landlord can't evict you without cause or non-payment and of course any eviction must go through the courts.

If a tenant leaves before the end of the lease, the landlord can seek the remaining rent by taking the tenant to court.

Years ago, there was a legal principal where if the LL was seeking the remaining rent, the LL had to show he/she was harmed economically by the tenant leaving and non-payment of rent, and also had to show that they made reasonable efforts to minimize/mitigate the loss of rent. They could do this by placing ads in the papers, putting out signs and make other efforts.

Over time the courts did away with this obligation and the LL no longer needs to mitigate his loss. (at one time the two judicial departments that cover NYC had differing rules on this, but I believe it's now consistent). I'd have to research this for more detail.

Of course the LL can always agree to release the tenant from the lease (and that must be in writing).

See if your lease allows for assignment where you can rent the place to another tenant. Usually the LL must agree to this, but not always. Under rent stabilization, if a LL refuses an assignment, the tenant can be released from the lease.

If a tenant leaves and returns possession to the LL -- make sure you can document the return of the keys to the manager (not the super) -- the LL can then rent the place to a new tenant. At that point the tenant has no remaining obligation, especially if the new rent is the same or higher than your rent. I'm not sure what the paragraph means that you cited, but I don't know if it would be enforceable.

From a practical view, consider that if you leave the country, it would be difficult if not impossible for the LL to get the rent if you had no assets here (i.e., bank accounts). But it might impact your credit rating, or be a problem if you plan on coming back to NYC anytime soon.

You could also investigate to see if you have a case for claiming the unit should be under rent stabilization. This would require effort on your part. Still, there are many units that have been deregulated illegally and with a bit of effort you can go after the LL. Who knows, you might be entitled for an overcharge.

Overall you need to consider other factors, i.e., how much rent are we talking about? You've already said you're willing to forfeit the deposit and another month's rent. How much is it worth to you to fight it out on court for the remaining seven months? How much would you be willing to pay an attorney to fight the case once you leave?

Also consider the principal here. This is a favorite scam of landlords, especially those that are litigious. There are simply times you've got to stand up to the landlords.
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