Question for NYC landlord/tenant experts

I told a friend (hereinafter "A") I'd put this question to the collective wisdom of the DL. A decides to move to NYC. A engages the services of a real estate broker to find an apartment. A selects apartment somewhere in Brooklyn and signs one year lease. A pays a total of approximately $7000 to move into apartment, which includes first and last month's rent, pet deposit, and $2800 (!) broker's fee. A then decides maybe going to NYC at this moment is not a great idea, for several reasons unrelated to the apartment itself. A has never taken possession of the apartment and in fact is not in the state of New York. Lease begins December 1. What are A's rights if A decides to not take the apartment? 1) can A get any part of the broker's fee back, and if so, how much? 2) can A get deposit (i.e. last month's rent) back immediately? What about pet deposit? 3) if any part of the contract is subject to a mandatory cooling off period wherein A can back out, how long is that period? 4) What are the odds that LL will re-lease apartment quickly? I know that depends on apartment, but what's the market like right now? No, A is not really me. I'm happily on the other coast.

• Not an expert but I hope A didn't sign away rights to sublet. This could be very costly if the landlord cannot find a replacement tenant. But the landlord must make efforts to mitigate damages by actively looking for a tenant. I hope you don't expect money back from the broker unless there is something in your contract with them that gives you an out. They did their job and they have a right to be paid. Of course there may be landlord tenant laws that cover this specific situation and then obviously those govern. Of course, I assume A has checked the lease they signed for escape clauses. What the hell kind of idiot goes to all that trouble to move to another state and then changes their mind? Are they also blowing off a new job?

• A is fucked!

• Op made that up just to get attention.I thik he might be retarded.

• No, not blowing off a new job. I hope A is reading this so I don't have to translate. I doubt there's an escape clause for the broker's fee, and I can't see a reason it would be triggered, but I know nothing about NY landlord/tenant law. A is under the impression that it favors the tenant, but I don't see evidence of that. With any luck, some DLers who know the specifics can weigh in.

• New York law is pro-contract and pro-landlord. I'll write this to "A"... If you sign a lease and breach, you are liable for rent for the lease term without a release from the landlord, because you have a valid lease and the landlord legally can't rent as long as you have the right to take possession. You cannot get the broker's fee back for the work he did to get you the lease. Sue for it and try. You will lose. You can always try to write the landlord and see if he will give your money back. If he won't, you have to sue for it, and with a signed lease, he has a right to it. The landlord has the apartment off the market and now will lose time finding a tenant who can move in. Even if the landlord starts looking for tenants again today, a month can easily pass before a new tenant is ready to take possession, when the landlord had a right to expect the rent during this period because you signed the lease. You need a release TODAY so you will not be liable for more rent. If you're out of state and you put the landlord on notice you're abandoning the premises and give him the right to rent again, he might to it and not come after you for back rent. You can ask for rent back, but don't expect it.

• Jesus -- I'm glad I'm in a flyover state!

• Since Judge Marilyn tapes in Manhattan, we look forward to seeing "A" on television.

• Is this just a New York thing? I have rented some high end places in LA and have never had to go through this shit.

• If you live in NYC and have time to find a new place you don't have to go through this shit either. Never used a broker nor do I know anyone who has. But that is if you are already there and don't have some sword of a timeline hanging over your head. Plus it's not exactly pro landlord to hold someone to a lease. Could you imagine the chaos if anyone could get out of a lease because they change their mind. A's rights are exactly what's written in the lease. Same with the landlord.

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• Landlords do have to mitigate damages. That is, they just can't sit on your lease and not even try to let it to someone else and then come to court and claim damages for the entire term of the lease. Doesn't matter only what the lease says you have to see what the caselaw says as well. The first payment you miss you have broken the lease. "A" should notfy the landlord of his intention not to take possession of the apt asap. All communication should be by registered mail. Also send the same communication to the broker. But for heaven's sake pay a small fee and get legal advice.

• Don't know where I heard this but I heard three months maximum for a landlord to mitigate his damages

• I don't live in NYC. But I do know that knowledge is power in situations like "A's." Learn the law first and study over the lease second and then go from there.

• Your friend was an idiot. Of course he got a substandard apartment he did not want for too much money, he used a fucking broker. Now he will be broker for his stupidity.

• Your friend should suffer for his stupidity! Why sign a lease for an apartment and then decide perhaps he should not move! If he does not move, then most likely he will be out of the whole year's rent! I don't see how he could just walk away from it. He clearly has no idea about how life or business works.

• Before I bought my place, I rented a couple of apartments using brokers and a couple directly with the landlord. The end result was the same - I found places I loved. But there was just so much less brain damage using a broker. I was working long hours so it made sense. And always spend money on a lawyer to review your lease. Riders, riders, riders.

• [quote]If he does not move, then most likely he will be out of the whole year's rent! Not true. A 30 day notice of a lease break is a norm in NYC.

• [quote]You cannot get the broker's fee back for the work he did to get you the lease. Sue for it and try. You will lose. Exactly. There is no way in hell you're getting that fee back. Before you've paid the fee you've already signed an agreement stating that if the broker has secured you an apartment which has resulted in a lease agreement being signed by the lessor and lessee, you're responsible for that fee.

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• R16, Only if the landlord agrees to let you out of your lease. I have read this asked many times in the NY Times real estate section and the answer is that you cannot break a lease just because you decided not to live there. You can negotiate with the landlord IF he/she wants to negotiate. If not, you are stuck.

• [quote]You can negotiate with the landlord IF he/she wants to negotiate. If not, you are stuck. R18, we're back to boom times and 99% occupancy rates in Manhattan housing. It is in NO landlord's best interests to keep an apartment off the block when it will likely be re-letted within a matter of days. The law doesn't allow "unjust enrichment" on contract claims, so there's NO way a landlord can re-let an apartment as well as collect "unpaid rent" from OP's friend for it. What *will* happen if he bails: 1) He needs to send the landlord a letter notifying him of his "anticipatory breach" (yes, that's a legal term) ASAP. 2) He has no reasonable chance of getting any of his $7,000 back, and it would cost him more in legal fees than he'd ever get back if he tried to pursue the matters in court, so he needs to let it go. 3) A landlord indeed has a duty to mitigate damages, which is why he needs to know ASAP if your friend isn't moving in. With luck, he can re-let the place quickly (and given that Manhattan has a 99% occupancy rate, that's likely). That said, it is unlikely that his landlord will find someone to take over for December, so the friend would be liable for that much at the very least (though his two-month deposit should cover that month and any other landlord expenditures in finding a new tenant, so the landlord would have little grounds upon which to sue, either, particularly for an out-of-state client).

• A duty to mitigate damage and actually doing so are two different things. As others noted NYC is pro-landlord, so he can sit on his ass and make up attempts to find someone and collect rent. Why not? It's better than having a tenant there. The OP should pull an "I Love Lucy" and simply try to get kicked out.

• [quote]Only if the landlord agrees to let you out of your lease. I have read this asked many times in the NY Times real estate section and the answer is that you cannot break a lease just because you decided not to live there. You can negotiate with the landlord IF he/she wants to negotiate. If not, you are stuck. Why would a landlord do that when he/she can put the apartment back on the marker and legally up the rent by another 20 percent?

  16

• Is A's last name Hole?

• "A" is a spoiled rotten, flakey bitch. Why are you friends with this person?

• Anyone who knows anything about landlord tenant court in nyc knows it is tenant friendly, and not landlord friendly... with that said, here's exactly what happens. A contract was signed. A is bound to the terms. The broker keeps the fee. The landlord has a duty to "mitigate" but will keep the first/last/security deposit. The landlord would have the right to sue A for the balance on the lease but wont, since A is not in NY and the landlord wont go to the trouble of brining that case, when he already has possession of the unit. If tenant sues landlord for the security, landlord can easily claim it will take 2-3 months to re-let the unit, and thus justify keeping the money A paid. A is the big loser... signs a contract and expects everyone else to be subjected to his whims.

• "A" should get their pet deposit back. Don't hold your breath for anything else.

• Maybe "A" should reconsider flaking out on the NYC apartment. They'll be out a truckload of money anyways, why not live there.

• Thanks everyone.

  OP

• R10, R16, and R24 are all wrong on the law. New York is one of the few states where courts have held that landlords have NO duty to mitigate. It's clear in New York. That is just one reason why it is considered more landlord friendly than other states like neighboring New Jersey. Any lawyer in New York City will tell you this. Tenants also MUST have landlord approval to sublet under the law, and if they're not allowed their remedies are to be let out of their lease. Also unusual for most jurisdictions. The area where NY is tenant friendly is that disputes have to go to summary proceedings and the cost of doing isn't worth it for the landlords, especially since they CAN re-rent even if they have no legal duty to mitigate by renting. The bottom line is here the tenant gave money and wants to get it back. The tenant will have to sue, and has no legal right to get it back. The lease starts at the end of this week. By the time the landlord gets a tenant in to the building, two months could pass. There's the cost to the landlord to tenant's breach. The answer is EXACTLY what was given above: see if your landlord is nice, cut a deal and cut your losses but GET A RELEASE IN WRITING.

• Sounds like moving jitters.

• Here is an idea. A should pretend to move in, and then sublet the apartment via Airbnb. By the time the landlord figures it out A will recoup his money.

• Or legally he could get permission to sublease, if the landlord says no, invoke his right under NYC law. The landlord then HAS to let him out of the lease. Normally that remedy sucks for tenants, but in this case, it's the giveback from New York to the "no duty to mitigate rule." If he doesn't have a reasonable reason to deny the sublet, the the landlord has to cancel the lease.