With New York having been the epicenter of the COVID-19 epidemic when it first erupted in the U.S., many residents now see it as an unsafe place to live, or can’t afford to keep paying high rents when they’ve lost income as large parts of the economy shut down. Unfortunately, given the restrictions imposed by rental leases, moving out can be easier said than done. The following information is intended for general guidance only. As with most complicated housing matters, consider hiring an experienced attorney.
Leases typically prohibit tenants from moving before they expire, at least not without incurring a significant monetary penalty. Tenants are generally responsible for paying all of the rent required over the lease’s term, with a few exceptions. This is particularly problematic in rent-stabilized housing, where many tenants opt to take on two-year leases to avoid the risk of a larger annual increase. This means that, for many, breaking a lease might expose them to a financial obligation of thousands of dollars.
There are several situations in which a tenant in the city is legally entitled to break their lease, but they are unlikely to apply to most renters. These include:
• Military personnel who have been commanded to move;
• The apartment being declared uninhabitable by local housing authorities, typically because of a failure to provide heat, hot water, ventilation, functioning appliances, or a space free of vermin such as roaches or rats;
• Landlord harassment or privacy violation, as determined by New York City Housing Court;
• Situations involving domestic violence, with corroboration by local law enforcement;
• Tenants 62 years old or older who are moving specifically to address health problems certified by a doctor, into an assisted living facility, or into housing designated specifically for the elderly; and
• Situations where the lease specifically allows early termination. This usually involves some kind of fee.
Otherwise, it is generally difficult for a tenant to get out of their lease before the end of its term. Thanks to the 2019 Housing Safety and Tenant Protection Act, landlords do have a legal responsibility to engage in “mitigation,” to attempt to minimize the amount owed by the tenant by renting out the apartment as quickly as possible. Landlords are not legally permitted to charge ex-tenants rent for a broken lease while simultaneously renting the same apartment to new tenants. However, what responsibilities “mitigation” actually entails is still uncertain, given that the law was altered only a year ago. While tenants should remind landlords of this responsibility, they should not rely on it to absolve them of their rental obligations.
Often, the best path for tenants looking to move involves either subletting or direct negotiations with their landlord. Renters in New York City generally have a right to sublet their apartment even if their lease stipulates otherwise — but the relevant statute holds that the tenant must get the landlord’s permission, although the landlord cannot unreasonably withhold that permission. There are some exceptions to the right to sublet, primarily applying to tenants who live in condos or co-ops, rent-controlled apartments, and public housing, or those who receive Section 8 vouchers or certain other housing subsidies.
A sublet also implies that the original leaseholder intends someday to return to the apartment. If you don’t intend to come back, you can assign the remainder of the lease to someone else, but the landlord has the right to demand that the new tenant demonstrate the ability to pay the rent. It’s important to follow the necessary procedures for subletting carefully. Met Council has resources that may help in this process.
For many renters, the smoothest way to break a lease will be to negotiate with your landlord. Most landlords would likely prefer to rent a unit rather than to have it sit empty while collecting rent from an old lease, particularly if they have a financial incentive to do so. In negotiations, it’s important to be upfront about your reasons for leaving; if you feel compelled to leave due to the COVID-19 epidemic, be sure to make this clear. While landlords are not obligated to release a tenant from a lease due to the virus, this explanation may help to convince them of your need to vacate the apartment. Some may be willing to allow tenants to break their leases if they relinquish any claim to their security deposit. Others, however, will likely ask you to pay several months’ rent. If tenants do not negotiate a settlement with their landlords and leave anyway, they risk being sued for unpaid rent, which could harm their credit rating and their ability to rent an apartment in the future.