Ask Sam: A landlord asked me to move out earlier than I planned. Do I have to pay the full rent?
“The landlord saying you can’t be in the apartment that week is tantamount to constructive eviction," says attorney Sam Himmelstein.
iStock
My lease is up at the end of this month, but I need to move out early. My landlord found a new tenant to move in the 21st, and I agreed to pay prorated rent through the 20th. But now the landlord says I have to be out by the 13th so he can get the apartment ready. This requirement isn’t in my lease, and the landlord says the lease is no longer valid because I broke it. Do I still have to pay rent for that week?
If the landlord is preventing you from occupying the apartment, you should not be liable for rent, says Sam Himmelstein, an attorney at Himmelstein, McConnell, Gribben & Joseph who represents residential and commercial tenants and tenant associations.
“The landlord saying you can’t be in the apartment that week is tantamount to constructive eviction," Himmelstein says. “If he is excluding you from possession of the apartment, then rent payments should stop on the 13th.”
Constructive eviction happens when conditions in an apartment force tenants to vacate. In these cases, they are not responsible for rent while they can’t be in the unit.
Furthermore, your landlord’s claim that you broke the lease isn’t true.
“Tenants can move out of their apartments early, as long as they’re willing to continue paying the rent. And in this case, the tenant is actually accommodating the landlord by allowing him to rent the apartment out earlier,” Himmelstein says.
You have not done anything illegal by moving out before the end of the lease—and in fact, if anyone broke it, it’s your landlord, by renting the apartment to a new tenant before your lease was officially up.
Tenants who do break apartment leases are only responsible for continuing to pay the rent until a new tenant is found—or, if the landlord rents the apartment for less, the difference between the lease rent and the new tenant’s rent. And if your landlord is renting the apartment to the new tenant at a higher rate than you were paying, then on top of everything else, he is violating mitigation law.
The law is on your side, in other words. Also in your favor: your landlord is unlikely to try to sue you for that extra week of rent if you decline to pay it.
“On a practical level, the landlord is not going to sue over seven days of rent,” Himmelstein says. “There’s no consequence even if the tenant doesn’t pay.”
Related:
Ask Sam: My rental wasn't available when I moved in. Is that constructive eviction? (sponsored)
Ask Sam: I'm moving and need to break my lease. How can I avoid paying a penalty? (sponsored)
Read all our Ask a Renters Rights Lawyer columns here.
Sam Himmelstein, Esq. represents NYC tenants and tenant associations in disputes over evictions, rent increases, rental conversions, rent stabilization law, lease buyouts, and many other issues. He is a partner at Himmelstein, McConnell, Gribben & Joseph in Manhattan. To submit a question for this column, click here. To ask about a legal consultation, email Sam or call (212) 349-3000.
