How to break the lease for your NYC rental apartment
- Breaking a lease puts you at risk of losing your security deposit or covering the remaining rent
- NY landlords have a duty to mitigate damages, which means they must try to replace you
As soon as you know you want to get out of your lease, notify your landlord or management company in writing.
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When you sign a lease for a New York City rental apartment, it's essential to understand that you are signing a binding contract: You are on the hook to pay rent for the entire lease term, which typically spans 12 months but can be as long as three years.
If you need to leave your apartment before the end of your lease, you risk losing your security deposit or, even worse, having to pay rent until a new tenant is found.
The reassuring news is that New York landlords have a duty to mitigate damages. This means they must do all they can to find another tenant at the same rent or the current market rent, whichever is lower. Or, they can opt to increase the rent in a highly competitive market, thereby letting you—the original tenant—off the hook.
[Editor’s note: An earlier version of this story ran in March 2023. We are presenting it again here with updated information for August 2024.]
This law is intended to level the playing field between renters and landlords, equally motivating both parties to find a new tenant who meets the building’s income requirements and can take over the apartment's lease.
How to break your lease
Despite some challenges, there are ways to make the process work in your favor. Here are some options to stay on the right side of the law and avoid paying more than necessary.
1) Put it in writing—and find out your options
As soon as you know you want to get out of your lease, notify your landlord or management company in writing. A letter sent by registered mail is the most formal method, but you should check your lease for specific communication instructions. (Don't assume an email suffices.) In the letter, you’ll want to explain your situation. Be upfront and transparent, and ask what your options are.
"Some landlords will act reasonably, so always approach them first. They may ask you to find a replacement or to give them regular access to the apartment so they can show it to prospective tenants themselves,” says Sam Himmelstein, a longtime tenant rights attorney at the Manhattan law firm Himmelstein, McConnell, Gribben & Joseph (now retired).
Given the frequency of lease breaks, many larger landlords have established general rules and procedures, while smaller, independent landlords tend to respond more on a case-by-case basis.
“Big landlords all have a process because they’ve been asked to do it a thousand times,” says Phil Horigan, founder of Leasebreak, a free listing site for short-term rentals and lease breaks. “They’ll say, ‘Sure, we allow it. And there’s a very specific way to do it.’”
“Allow” does not mean “don’t worry about the rent you’re contractually obligated to pay.” As long as there’s no lost rent, you may be fine, says Rory Bolger, a broker at Brown Harris Stevens. For instance, a larger landlord may have another renter who needs to relocate or even another apartment with dates and terms that suit your needs.
Other landlords might let you out with a fee, and some management companies will let you break the lease penalty-free if you move into another building in their network.
The goal is to get your landlord to sign a "surrender of lease" agreement containing language that legally releases you from the contract.
2) Find another tenant to take on the lease
You're not off the hook, even if you know someone who wants to move into your place.
Most landlords want to approve new tenants, holding them to the same financial criteria and other screening processes you faced when signing the lease. These requirements typically include earning 40 times the monthly rent annually, a clean credit history, and proof of employment.
A landlord can withhold consent if they provide a valid reason for the refusal. This might be related to the new tenant's financial history or how the apartment will be used—for example, as a therapist's office.
The Met Council on Housing, a NYC tenant’s rights organization, has a guide to what constitutes a reasonable or unreasonable refusal. Their site also outlines your right to suggest another qualified tenant to take your place if you intend to leave your apartment permanently, which is called an assignment.
In this arrangement, the landlord can assign the lease to the new tenant and then release you from your responsibilities. Once you submit the qualified replacement, the landlord must act within 30 days—and give a reasonable explanation if they turn down a proposed tenant.
Under NYC housing law, you have a similar right to request to sublet your apartment if you live in a building with at least four units. If the landlord doesn’t respond to your request within 30 days—or 30 days of receiving any additional information the landlord has requested—then that is considered consent by default.
However, Himmelstein points out that you are still responsible for all the lease obligations, including the rent, with a sublet.
“And if the landlord reasonably refuses to consent—and it is often unclear what that looks like—the tenant cannot proceed with the subletting. If the landlord unreasonably refuses to consent to the sublet, then you can proceed with the subletting, but the landlord might challenge it in court,” he says.
According to Horigan, another hiccup with this scenario is the 30-day timeframe, which is impractical in a competitive rental market. “There are few—if any—renters that can wait 30 days for a landlord to make a decision.” So, if you don’t get a response, he recommends following up with the property owner or leasing agent and trying to work directly with them to achieve the outcome you want.
One final caveat: The right to assign your lease doesn't apply if you rent in a co-op or condo building. In these cases, however, you are typically dealing with individual owners who want to avoid involving attorneys and are inclined to be reasonable.
That said, every board has its own rules—including refusing to let the owner re-rent to a new tenant for a lease shorter than 12 months or allowing only one tenant per 12-month period. These rules can often be worked out, but it’s worth checking beforehand. (Read "My co-op board falsely accused me of illegally subletting my unit. What should I do?" for a first-hand account of what you could face if you go this route.)
3) Avoid breaking your lease in winter, if possible
The slowest time for rentals is November through February or March, so if you need to break your lease, it’s more complicated to do so in winter. First, you and your landlord will find it much easier to get a replacement tenant in the summer. Secondly, Horigan says rents can be anywhere from 10 to 30 percent lower in winter, and the landlord may have to offer more concessions to fill the place.
“Generally, an environment when rent prices are increasing is a better time to break your lease because landlords are incentivized to get new tenants sooner at higher prices,” Horigan says.
It may also depend on how many similar units the landlord is trying to rent. Bolger says sometimes adding another unit to the market is costly for the landlord: “If a building has five one-bedroom units available for July and you are going to throw another one in the mix, that doesn’t help the landlord at all,” he says.
On the flip side, if your lease ends in the slower winter months and you want to break it during summer, a landlord might appreciate it if you can find a new 12-month renter with a summer start when prices are much higher. “The smaller landlords are not always thinking about this opportunity, so it can help get them to work with you,” Horigan says.
Note that most people start looking for a place to rent 60 days in advance and up to 90 days on full-service luxury apartments. “The best starting place is to have the apartment marketed 60 days before a lease break,” Bolger says.
What to know about your security deposit
As a result of changes to the rent laws in 2019, landlords must do what they can to find a tenant to replace you. The aim is to incentivize both tenant and landlord in equal measure. That means your security deposit isn’t necessarily at risk.
If landlords could keep the security deposit whenever a tenant broke their lease, there would be less incentive for landlords to mitigate damages by trying to re-rent the apartment, says Ellen Davidson, a staff attorney at the Legal Aid Society in New York. She maintains the law means landlords can’t retain your security deposit simply because you break your lease.
The law may also make you less likely to be sued for breaking a lease, but damages could still be imposed—to cover repainting, paying a brokerage to re-rent the apartment, and lost rent. Also, your security deposit is vulnerable if there are unpaid utility bills or damage to the apartment.
Keep in mind that landlords need to provide you with a walk-through at the end of a tenancy, itemize any damage, allow you to make any repairs, and pay you your money back, less any repair costs, within 14 days of the tenancy end. If that isn’t done, a landlord forfeits any right to your security deposit.
Know, too, that if you were offered one or two months free when you signed the lease, this perk is unlikely to be extended to the incoming tenant. If the free months are at the end of your lease term, you will likely have to forfeit them when re-renting the apartment.
And if you are tempted to recover the hefty brokerage fee you just paid when moving in, think again. "This is something I've seen recently, and while this is certainly understandable, tenants should know they are not legally allowed to charge commissions if they are not a licensed real estate agent," Horigan says.
You may pay a penalty for breaking a lease
Even though your security deposit is likely refundable if your apartment is clean and undamaged and there is a working set of keys, you may still face a penalty for breaking your lease.
Unless you negotiated it before you began renting, a lease-break policy is unlikely to be included in your lease. If it is, however, it might lay out specific monetary penalties if the lease is broken in the slower winter months or if you’re not flexible when it comes to showing the apartment to new renters.
Adam Frisch, senior managing director at the brokerage Mantus Real Estate, uses this kind of policy and says he has “very rarely had any pushback from that,” noting “most tenants appreciate that it’s a flat fee in return for knowing [they] can leave.”
Whether or not your lease has a lease-break policy, you may face additional fees for cleaning or painting costs. One argument against that is based on the maintenance housing code, which requires landlords to paint every three years, but Davidson notes "that rule is not regularly followed” and might not hold water.
Relatedly, Horigan says landlords often do not paint and clean the apartment before the new tenant takes occupancy in a lease break situation. Instead, the apartment comes "as is."
"To avoid any confusion, you should confirm with your landlord if the apartment will be painted and cleaned before move-in so you can properly communicate this information to the incoming tenant," he says.
It’s also worth investigating what your landlord is marketing your apartment for. If you were paying $2,500 and it is listed for $3,000, the landlord is violating the duty to mitigate damages. If the new rent is lower, you may have to pay the difference between your rent and the new rent.
Frisch says landlords are unlikely, in practice, to go after tenants for a few thousand dollars in lost rent. He says 50 percent of the lease breaks he deals with involve a tenant moving to a new city, often in a different country. “The process by which I could sue someone in Europe for $5,000 is theoretically possible though impractical, and also, it just creates resentment,” he says.
Can you end up on the tenant blacklist for breaking a lease?
Rent laws specify that landlords cannot solely use the tenant blacklist to deny someone an apartment. That means you should, in theory, not feel intimidated when it comes to fighting back if a landlord is making demands for fees.
In practice though, the ban on using information from NYC Housing Court isn’t free of loopholes. Frisch says the ban is simply “unenforceable.” He says landlords will find ways to vet incoming tenants and because landlords cannot take more than one month’s security, it can make it more difficult for people with less than stellar credit to find housing in NYC.
How to make a case for a constructive eviction
So far, everything above applies to a scenario where you’re moving out voluntarily, rather than a situation where your apartment has become a living hell—or at least, what a reasonable person would consider uninhabitable.
If you're leaving the apartment early because it has serious problems—such as mold, bed bugs, lead paint, or construction noise—then you may have a case for constructive eviction, in which you claim the landlord has failed to uphold the warranty of habitability.
If a landlord is refusing to correct issues like mold or lead paint, it can constitute harassment. There’s a specific provision in the law enabling the tenant to claim legal fees in these situations.
To claim constructive eviction, you must first move out. This is risky because if you are wrong, you have to pay the rent. So, before you move, it’s wise to stick around and document the problems.
Call 311 or go online to file a complaint. If the city issues violations, that is objective proof of conditions.
Your detective work could include finding out via the Department of Buildings whether the building has any violations or if apartments have been illegally deregulated, the building's facade is damaged, the boiler's efficiency is low, or the certificate of occupancy doesn't match the building's use.
In addition, you can take photos, send letters to the landlord, and call in experts to confirm the existence of issues like mold, asbestos, or secondhand smoke. Violations alone may be enough to pressure your landlord to let you out of the lease early.
—Earlier versions of this article contained reporting and writing by Emily Myers.
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