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Apartment not ready

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Apartment not ready

Postby lucent74 » Mon Jul 02, 2018 4:58 pm

Hi! I’m wondering if anyone has had any experience with the following: a family friend of ours who just graduated from college moved to NYC and was supposed to move into her apt located on 7/1 but the current tenants are refusing to move out until they find an apt. She has a contract and signed lease and has paid first and last months’ rent plus a security deposit. The broker is located overseas and not returning her calls or emails/texts. All of her stuff was just shipped to the new apt. Although I’m a lawyer, I’m not familiar with landlord/tenant law and wondering if anyone knows what she can do and if there is a lawyer you would recommend to handle this?
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Re: Apartment not ready

Postby TenantNet » Mon Jul 02, 2018 6:37 pm

Reason 47 why kids should not move to NYC right out of college. Stay in Iowa. They also take up room on the sidewalks and walk too slow.

It's also a textbook case of how kids get in trouble moving to NYC. An overseas broker, are you kidding? Why would she even think of agreeing to that.

It's not her fault the unit isn't ready. It's the LL's obligation. But the first thing to do is check the fine print of her lease on what are her remedies in a situation like this. Some leases will talk about Acts of God, i.e., earthquakes, etc. But this is a civil dispute, apparently not of her making.

Our view is that the LL should put her up in a hotel in the meantime and pay for storage of her furniture that she brought with her, if any. The LL represented (and contracted) that the unit would be available and ready on July 1, and it's not. That's a breach.

I would find out when the old tenants let the LL know about their intent to stay put. If the LL knew about this, they should have a) immediately called the new tenant and informed her of the situation, b) offer another comparable unit in the building, if available, or c) offer hotels, storage and so forth (or all three). Also, did the LL notify the broker? The broker should not be getting a commission for a unit that's not available.

Brokers are licensed by the state and she should put in a complaint.

For local NYC tenant attorneys, we have a number that advertise on this site. I'd call them up and/or seek a consultation. Some will do that on a low cost or free basis.

Also, while it doesn't help your friend, understand that they tenants who are still there, well there might be more to their story. They might be facing the same thing in their new place.
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Re: Apartment not ready

Postby BubbaJoe123 » Tue Jul 10, 2018 5:54 pm

TenantNet wrote:The LL represented (and contracted) that the unit would be available and ready on July 1, and it's not. That's a breach.


We'd have to see the specific lease to be sure, but the Blumberg lease, which is pretty much the standard for NYC, includes a clause that specifically states that "Landlord shall not be liable for failure to give tenant possession of the apartment on the beginning date of the term. Rent shall then be payable as of the date possession is available. Landlord must give possession within a reasonable time, if not, Tenant may cancel and obtain a refund of money deposited."

So, if the lease in this case uses that form, or something similar, and it probably does (every market rate lease I've encountered in NYC has that clause or something very close), then the LL isn't in breach, and the tenant's only recourse is to not pay for the apartment until he/she can take possession, or to cancel the lease.
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Re: Apartment not ready

Postby TenantNet » Tue Jul 10, 2018 6:42 pm

Bubba, I wouldn't be so quick to give incorrect information here just because you're mostly pro-landlord leanings. The Blumberg lease form says a lot of things, some of which are unenforceable. Doesn't make it true.

I'm not suggesting the tenant has a slam-dunk complaint here, but there are any number of factors that could determine if the LL has some liability, either as a penalty or to mitigate the tenant's situation.

Yes, the LL might also be in a hard place if the old tenants simply refuse to vacate. But a lot depends on what the LL did when he/she discovered the situation.
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Re: Apartment not ready

Postby BubbaJoe123 » Wed Jul 11, 2018 1:54 pm

I'm simply pointing out that the landlord likely isn't in breach of the terms of the lease, as written. If there's any caselaw/regulation/statute indicating that the liability limitation in the lease isn't enforceable, I bet the OP would love to see it, since that would be hugely helpful to them. I haven't seen any such evidence, however, else I would have cited it.

If the OP really wanted to get into this, they might have a claim against the tenants who haven't departed as agreed for tortious interference in the contract between the new tenant and the LL. Probably wouldn't go anywhere, but might be worth a shot.
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Re: Apartment not ready

Postby TenantNet » Wed Jul 11, 2018 3:56 pm

And this is not correct. You can't suggest the LL can just wash his/her hands and walk away from a situation such as this - even if it's not of his making. You have to look at mitigation efforts. you have to look at possible negligence. There are wider issues than just what is printed in the lease.

If nothing else, a well-prepared suit by a tenant might force a LL to offer some compensation even if a court might not agree. Just the possibility of going to trial makes parties reconsider.

The LL might have options in seeking redress from his liability insurance, or looking to the old tenants to make him (and the new tenant) whole. The new tenants have no privity with the old tenants, so they can't go to them. They have to go after the LL.

None of this would likely be statutory; it would be in case law. But that is what courts are for, when parties disagree.

I'm not suggesting any of this would be easy, but it's more along the possible.
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Re: Apartment not ready

Postby BubbaJoe123 » Wed Jul 11, 2018 5:22 pm

TenantNet wrote:And this is not correct. You can't suggest the LL can just wash his/her hands and walk away from a situation such as this - even if it's not of his making. You have to look at mitigation efforts. you have to look at possible negligence. There are wider issues than just what is printed in the lease.


The lease is a contract, and one (assuming, and it's a pretty good assumption, that it follows the typical format) that expressly deals with this very situation, by giving the landlord the right to wash his/her hands and walk away.

As I said, if there's evidence that the clause isn't enforceable, that would be really useful to the OP.

As for filing a suit in attempt to shake loose some compensation from the LL, the OP could certainly do so, but I'd check what the lease says about attorney's fees before going down that path. Even a fully reciprocal attorney's fees clause could make filing a suit an expensive proposition.
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Re: Apartment not ready

Postby TenantNet » Wed Jul 11, 2018 7:37 pm

Atty fees might apply, but it might not if the cause of action was prior to the complaining tenant taking possession.

As for "the lease is a contract," seriously? That's the kind of reasoning that anti-rent-control deplorables use, i.e., "willing seller-willing buyer" with kindergarten economics.

Situations like this can be a good bit more complex. As I said before you can consider mitigation and negligence. You can also look at what might be considered reasonable delay, or possible "time is of the essence" provisions (although that's usually in commercial leases).

And again, I'm not saying it's a easy claim for the new tenant(s) to make. But don't shut the door either with "a contract is a contract" thinking.

So let's leave it at this.
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