Q. I rented a one bedroom downtown to a college student last year. Because he had no real income, I insisted that he use a guarantor. The student’s father agreed to sign a personal guarantee for the lease. For six months, I had no problems and received the rent every month on time.
Then he missed a rent payment. I contacted both the tenant and his father (the guarantor) and received a rent check shortly thereafter from the father. It turns out that the tenant dropped out of school, left the city, and has no real intention of returning to the apartment.
My question is, can I re-rent the apartment to a new tenant and continue to collect the remainder of the rent on the lease from the guarantor?
A. No. So long as you continue to collect rent from the guarantor, the former student still has a legal tenancy in the apartment. That tenancy can only be terminated prior to the natural expiration of the lease by a mutual agreement of you and the tenant or by an eviction in Housing Court.
In New York, landlords have no legal obligation to mitigate damages in the event that a tenant breaches the lease. That means you have no obligation to attempt to re-rent the apartment before the lease comes to its natural end. That said, there is also no legal basis for collecting rent from two separate parties at the same time for the same apartment.
It would be permissible to negotiate with the guarantor for an early termination fee. Perhaps in exchange for a total release of their obligations, the guarantor and the tenant would agree to pay a sum less than that owed in rent on the remainder of the lease. In the event that you receive the termination fee and released them from their obligations, you could re-rent the apartment to another tenant.
Mike Akerly is a New York City real estate attorney, landlord, and real estate broker. He is also the publisher of the Greenwich Village blog VillageConfidential.
Note: The information provided here is for informational purposes only. It should not be construed as legal advice and cannot substitute for the advice of a licensed professional applying their specialized knowledge to the particular circumstances of your case.