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February 27, 2009
Tenants moving out early
My tenants just informed me that they are moving 4 months shy of the end of their rental agreement. The reason for the move is a new job outside of NYC. They say that they are moving "sometime in March" so have not even given the required 30 days notice. They also say that they cannot pay March's rent and told me to use their security deposit. This is not acceptable to us as the deposit is meant to cover any damage to the apt. and not rent. I find it infuriating that they think that they can set the terms on how we should deal with this, and strongly feel that they must be held accountable for their obligations. Frankly, they have been total jerks about this and other recent issues. We need advice on how best to proceed. What should we do if we cannot get new tenants before the end of the current rental agreement? We know that we can hold them legally liable for the rent that they owe, but don't know how to initiate a claim. Thanks for any and all advice.
Comments
Just stick to the rules stated in the lease. Inform them that the security deposit is not the same as the last months rent. As a landlord myself, all my tenants pay first & last months rent, plus a security deposit when they take an apartment. Be sure to do this in the future. I'm not sure you want to go after the 4 months left on the lease but that's up to you. On the bright side you will be free of your difficult tenants.
Posted by: Rick at February 27, 2009 6:58 PM
let it go, i have many times let people off the lease early. better than wasting time and money in court, and they wouldn't even be in nyc to deal with it. pointless just move on and get new tenants.
Posted by: armchairwarrior at February 27, 2009 7:11 PM
Also insist on written 30-days notice.
Also, where is this place? You should be able to get tenants in a day. Show the place before they leave.
Posted by: mopar at February 27, 2009 7:12 PM
What armchair says. You'll never see a dime and waste a lot of time and money. What you ought to do is have them sign a one page agreement that the Lease dated such and such between them and you is null and void as of March 15th or whatever. That way you could forgo getting legal possession which you should do if someone moves in before the end of the current lease. Sorta like getting married again before you're divorced.
Posted by: mod squad at February 27, 2009 7:23 PM
The bright spot about keeping the deposit as rent is that you can keep the interest earned from the deposit the tenant gave you - provided you did put their money in a separate interest earning account as stated by law. I've had LL in the past who did not know about this but I that's typical when dealing with mom & pop LLs. I didn't make a big fuss about it even though it was several hundred dollars in lost accumulated interest and that was before this credit mess when interests were pretty decent.
Posted by: CookieCutterBrownstone at February 27, 2009 7:44 PM
I'd sue them for the four month's rent... but you should get advice from a lawyer, not posters on a blog.
Posted by: denton at February 27, 2009 7:46 PM
Basically, I agree—let it go and celebrate their departure. Unless, that is, you're prepared to lose more time and money than the situation is worth. Also agree that this is why landlords have come to insist on tenants depositing first and last month's rent as well as one month's security. Provide tenants with clear requirements for return of keys and final walk-through. For your own records, it's worthwhile to put something in writing to the tenant, for example: By the terms of your lease, your security deposit was delivered as assurance against damage to the premises. I do not agree to waive your obligations under the lease while your lease remains in effect (through "x" date). Your security deposit is not a lawful substitute for rent due. Please be sure to respond to this notice in writing.
Posted by: vinca at February 27, 2009 7:49 PM
I understand why people would suggest that the landlord take security as the final month's rent. while i dont know anything about you personally, I have known some unscrupulous landlords who have tried to keep deposits unnecessarily. By using the security deposit, it forces the landlord to act in order to collect on any charges.
If the tenants are moving out in march, then they should pay the rent for the month of march. If you cant lease their apartment for the same rent, you are entitled to the difference. As a practical matter, it depends on the circumstances to determine whether it's worth it.
Posted by: slick at February 27, 2009 9:22 PM
They have a lease which is a legal contract. When they don't pay the rent on March 1, I would send them a notice to cure as per the terms of their lease. Since they notified you they are leaving, you have an obligation to try to rent the apartment for the remainder of their term but that does not relieve them of their responsibility for the rent for the entire term until it is re-rented. You don't have to jump through hoops, just do what you normally do to get it rented. Make sure you document and keep proof of your efforts to re-rent.
I disagree with the advice to let them walk. If you don't re-rent it, you can file suit for unpaid rent in small claims court without an attorney in the county where the apartment is even if they do not live here any longer. Just keep the amount under the small claims limit even if the loss is really more. The judgement (you are likely to win) will be filed against them and you can send it to collection. And enter it with the credit reporting agencies.
Keep it business and don't get caught up emotionally in the suit and don't hold your breath waiting for the money. You many never see it but it shouldn't be so easy for them to walk away from their legal obligations.
Posted by: jfss at February 27, 2009 10:11 PM
I'm repeating myself but If the tenant asked me how to break this lease and walk away unscathed I would offer the LL an agreement to vacate on a date while declaring said lease null and void and no longer in force. An uncontested repossession will take approximately 2 months from the day you send the initial 3 day notice. Until you prove in a court that they broke the lease you are bound by it too. I would really try to get that voiding of the lease.
Posted by: modsquad at February 27, 2009 10:44 PM
Ridiculous, modsquad. If the renters send a 30-day notice in writing, why does either party need a lease termination agreement?
Posted by: mopar at February 27, 2009 11:40 PM
Mopar, where does the OP say they are sending a written 30 day notice? Huh?
Posted by: mod squad at February 27, 2009 11:50 PM
Further more where in a standard REBNY or any other lease does it say that this lease can be terminated by either party with a 30 day notice?
Posted by: mod squad at February 27, 2009 11:56 PM
I'd call a lawyer, file a claim and make sure it goes on their credit report. Or you could be prepared to do so, and negotiate, say 2 months' rent. I've broken leases before but only after negotiating with the LL. Something tells me, though, that you're not going to get any more money out of these people.
Posted by: Bolder at February 28, 2009 12:12 AM
You need evidence to prove your claim and part of that evidence will be a "nonpayment" entered in your favor in Part 52 plus an executed warrant for possession on LL's behalf. Any rent you realized during the rest of the time under the old lease will be deducted from the claim although you will be able to throw in the 2K to 4K you spent on a lawyer to pursue the non payment. Big waste of time and money.
Posted by: mod squad at February 28, 2009 12:29 AM
This is just more evidence of how poor a place tgis is for getting advice or info. First you need to know good lawyer. Before you rent or do any type of commerce. A good attorney will look after your interests and a good attorney will not charge you for decen adive.
They will charge you and should charge you for creating a lease agreemennt. If you downloaded these agreement from the web or purchased the 10 pack lease agreements at staples, then you need to let these tenants and anyone else who floows them go. You have to have a good lease agreement in the first place.
Second.....if you had a good lawyer that attorney will have already sent you tenants a notice putting them on alert that they are violating their agreement made in good fath and that the next letter the attorney sends to them will be a court appearance.
As for your deadbeat tenants...you should have their SS numbers and report this to a credit agenncy or at least tell them this. As well as explaining to them that any new landlord in any city will be contacting past referances and that any good a vigilant future landlord will see this as a big warning sign.
These are about the 2 best options. A menacing letter from your attorney and a letter from you stating that their lack of honoring their contract commitment will stay with them. You can even fuck with their heads a little and tell them you know of websites that keep track of deadbeats and their names may wind up there like bad ebay feedback.
Posted by: bonsavant at February 28, 2009 2:04 AM
This is just more evidence of how poor a place tgis is for getting advice or info. Apologies to those who have posted sensible advice.
First, good tenants are hard to find but they can be found. Landlords must be modest with expectations and also understand that if units are renting for X dollars in an area, those X dollars might not be realistic long term. So as a landlord see whats really reasonable for your area.
First you need to know good lawyer. Before you rent or do any type of commerce. A good attorney will look after your interests and a good attorney will not charge you for decen adive.
They will charge you and should charge you for creating a lease agreemennt. If you downloaded these agreement from the web or purchased the 10 pack lease agreements at staples, then you need to let these tenants and anyone else who floows them go. You have to have a good lease agreement in the first place.
Second.....if you had a good lawyer that attorney will have already sent you tenants a notice putting them on alert that they are violating their agreement made in good fath and that the next letter the attorney sends to them will be a court appearance.
As for your deadbeat tenants...you should have their SS numbers and report this to a credit agenncy or at least tell them this. As well as explaining to them that any new landlord in any city will be contacting past referances and that any good a vigilant future landlord will see this as a big warning sign.
These are about the 2 best options. A menacing letter from your attorney and a letter from you stating that their lack of honoring their contract commitment will stay with them. You can even fuck with their heads a little and tell them you know of websites that keep track of deadbeats and their names may wind up there like bad ebay feedback.
FYI, my tenant tried to pull the "economy sucks can you lower my rent" scam.
I politely told her that the agreed to the rent and simply saying she cant afford it will not work. The other issue is her weekly freshdirect orders, amazon,com deliveries and all sorts of other things which look very much like things are fine in this persons budget but thinks they can use the current market as an excuse.
As for the other tenant in my building, she has been paying rent for 10 years with modest or no increases. She is rarely late with payment and understand that her unit can be rented to anyone for much more and understands there is economic value in having this situation work for both parties.
Posted by: bonsavant at February 28, 2009 2:16 AM
I'm on the same page as Vinca however I would also include in the written notice that their failure to stick to the terms of the lease agreement will be reported to the Credit Bureaus.
I would also make sure to follow through and actually report it so that the next landlord is made aware. I'm sure if you'd have know that they'd done this in the past you either wouldn't have rented to them or you'd have required first, last and security.
Posted by: TownhouseLady at February 28, 2009 7:15 AM
How dare they rebell and try to build a life for themselves. Don't those loser renters, who by the way are paying you till their last day. If they were free loaders they would have stopped 6 months ago. Take them to court. I don't think homeowners have much sypaathy with judges now, Homeowners are getting bailouts and tenents are getting sh... I hope you find tenents like you really deserve.
Posted by: hannible at February 28, 2009 7:18 AM
Attorney here. See jfss's comment above at 10:11pm. He/She is correct. And what waste of money are you all talking about? Yes, you can get a lawyer to help you with this, but you don't need one. You can do this yourself. All you need is, provided they are still there for any number of days in March, wait until the March rent isn't paid on time, go and file a claim in small claims or L/T court, attaching a copy of the lease as proof of your agreement and state that they failed to pay March rent. It will then be incumbent on them to show that they did pay it (and since they are refusing to pay it and likely won't, they lose and owe you the money.) I wouldn't bother to chase the money owed on the rest of their lease (April-whenever the actual expiration of the lease is). It is always your duty to try and ameliorate your damages, which in this case means finding another tenant ASAP. If you can't find another tenant, then, yes, they technically owe you for the remainder of the lease. When you go to the L/T courts, they often have attorneys there who volunteer to help you do the preliminary things for your case like answering basic questions about filing a complaint, etc.- however they will not provide you with exact legal advice specific to your needs. If you prefer the comfort of having hired an attorney, I can refer you to a good friend of mine who can help you.
Posted by: InsertSnappyNameHere at February 28, 2009 8:52 AM
This is ridiculous. Many of the suggestions here are going overboard. Do you want them to move out and find a replacement as quickly as possible so you don't lose any rent, or do you want to try to enforce a contract and not see any money?
If you want to pursue the former, just talk to them like a normal person. Tell them you understand they need to move, it's not a problem but they need to give you 30-day notice in writing, they need to pay the last month's rent, and that you will return the security deposit in full with interest minus any ACTUAL charges for damages with receipts for the repairs, if there are any. (So the don't think they're going to have to pursue you.) Tell them you want to show the place while they're still there.
If you live in a desirable area, you should have the place rented for a decent amount right away.
If they balk, tell them in a businesslike manner that you will sue them, ruin their credit, not give them a reference, etc. (Even if it's not true.)
As for ruining their credit and everything outlined above, you are going to have to take them to landlord/tenant court and get a judgment filed against them before you can refer them to any collection agency. You'll never see a penny. And if they are moving out of state, they really don't care.
You're being somewhat legalistic to think they owe you four months rent because the lease says so, even though they have to move.
You also don't want to get into a situation where they have not given notice and haven't moved and aren't paying rent and you can't show the plac and then you have to evict them and so on.
Alternatively, as mod squad suggests, you could have them sign a lease termination agreement instead of giving 30 days written notice. In practice, it's more or less the same thing.
Posted by: mopar at February 28, 2009 9:47 AM
Amazingly, I find myself in agreement with Hannible in this case.
Posted by: mopar at February 28, 2009 9:50 AM
Inform them they need to follow the letter of the legally binding lease, otherwise you'll be forced to put a lien on the credit for the unpaid funds.
You could jack up their credit...
...Or be happy to get rid of them and chock it up to the cost of doing business and a small fee to get rid of crappy tenants.
Posted by: christopher at February 28, 2009 6:11 PM
well it is not like you will loose any monthly rent here. And they will move out without fuss. So I would let it go.
Sounds like they paid rent and were normal people only their life changed and they have to move out. On the other side if you will stick them with legal action, they can act as a&*holes them self. For example they can lock apartment and move out. Legally you will need to go though the hoops to take possession of this apartment in the next four months. And/or they can leave hot water running, windows open, drop bag of cement into toilet or sue your ass for lead paint. So I would let it go... at least until they will move out.
Posted by: bobjohn at February 28, 2009 6:45 PM
Agree with Bobjohn. The lease is there to protect both parties from irresponsible and dishonest behavior. It shouldn't be mistaken for an instruction manual, nor a landlord bill of rights.
Posted by: mopar at March 1, 2009 12:32 PM
Bobjohn raises the most important point here, which is how much pain these people can cause if the conflict escalates. This scenario seems potentially incendiary. If the tenants are under stress about their lives and employment, it's easy to become a target of their angst. I can easily imagine any landlord attempts to enforce the lease prompting more negligent behavior. Even if they don't do something destructive, even the burden of leaving some furniture behind could be a real drag to have to deal with because there's no security deposit left.
If this were my tenants, I would do everything I can to communicate that I am not out to get them and understand their situation. l would try to leverage that empathy, and get them to understand that I am being cool about the lease and using their security deposit to pay rent, and that they should therefore take extra good care when moving out.
And in the future... this is why you collect last month's rent at the beginning. It's a big conflict minimizer.
Posted by: vanburenproud at March 1, 2009 2:46 PM
Nice going, bobjohn. OP's question was not about whether he'd lose money or not. But why stop your list of tenant vandalism and sabotage where you did? Maybe next time you'll just post a link to the Anarchist's Cookbook.
Posted by: vinca at March 1, 2009 4:14 PM
Lawyer here. There is NO duty to mitigate in New York. Your tenants owe you the remainder of the rent for the lease term. You can keep the apartment empty and recover from them or you can rerent and recover the difference. You can sue them but it might cost just as much to sue as you would recover (unless your lease has an attorneys fees provision).
My suggestion: Tell them that you are willing to allow them to break the lease BUT that they have to pay March rent and that the security deposit will be returned if the apartment is left in good condition. If they are unwilling to agree to such a reasonable proposal (one that acknowledges their need to break the lease with your need to have the rent paid), tell them that you will sue, report them to the credit agencies and obtain a judgment against them (which will go on the credit report) -- all of which you are legally entitled to do.
Your tenants are being unreasonable. You don't have to force the issue by making them stay 4 months, but they should pay you for MArch.
Posted by: keep at March 1, 2009 4:22 PM
Keep, there's a difference between what's correct and what will cost the landlord the least time, energy and money over the entire event-arc.
Of course the tenants are being unreasonable, and of course the OP has the right to do what you lay out.
But in reality actions, even reasonable actions, tend to create reactions. Being threatened by the landlord can make tenants do hostile things. The fact that the tenant earned the threat is meaningless--the righteousness of the landlord doesn't make the tenant any less likely to retaliate by putting a bag of cement in the toilet.
Humans are funny that way.
If I were the OP I would consider my lesson about getting first-last-security upfront learned and work to minimize fuss. Not because the tenants have the right to behave badly, but because people tend to continue behaving badly once they've started. The potential drama is not worth it.
Posted by: vanburenproud at March 1, 2009 4:43 PM
Thanks for the advice everyone. We knew that there would be lots of differing opinions and we are grateful for the advice. It helps us to think a bit more clearly. We inherited these tenants when we bought the house a couple of years ago. We increased the rent when we moved in, but did not ask for an increased security deposit. This was a mistake and we will certainly be asking for one month plus last month from now on. The security is enough to cover a month's rent, but we are still not comfortable with using it for the March rent. This is the main sticking point between us and them. We will certainly return their security deposit to them in full and with the interest that it has earned after they move out as long as there is no damage. We have agreed to release them from the lease as long as new tenants are found. It is a nice apartment so we hope that this will be easy to do. We are understanding of their reason to move. We don't want to force them to stay or to make their lives miserable, but we take their and our obligations to each other very seriously. Hopefully, with the good advice offered here we will be able to come to an amicable resolution.
Posted by: slopetoad at March 1, 2009 11:18 PM
Wonderful! Hope it works out and all goes smoothly.
Posted by: mopar at March 2, 2009 3:01 PM
Sloaptoad,
I know I'm coming to this late, but I think the 30 days business is a red herring. You have 30 days. They're saying they'll be gone by the end of March. If they leave earlier you aren't going to pro-rate their rent, are you? No. So you have 30 days and honestly, you have a better deal than 30 days if they're gone before the month is out, because you have time to clean the place up and show it.
The question is whether the deposit should be used as the last month's rent or not.
Yesterday we got the pleasure of overhearing our landlord bickering with a departing tenant about the return of his deposit. Landlord wanted proof that all the utility bills were paid up, which is absurd. Later in the day I could hear him mumbling about the condition the apartment had been left in--condition that is pretty hard to gauge since he went in with his paint cans on Wednesday even though the tenants had every right to stay there through Saturday. So he was really griping about the state of things halfway through their move, which is lame.
My note to self in listening to them? Insist that he use our deposit to cover the last month's rent. Because people find all kinds of ways to drag their feet.
Meanwhile, while first, last and deposit sounds nice, if you're using an agent keep in mind that that means someone has to come up with a *lot* of cash to move in.
Posted by: serpentor at March 2, 2009 3:33 PM
CookieCutterBrownstone -
A security deposit only has to be held in an interest bearing account if it is for a rent regulated apartment or part of a building with 6 or more units. Otherwise, it is up to the landlord what he/she wants to do with it. The only stipulation is that it can not be combined with any of the owner's own funds. So unless your apartments fit the above criteria then you probably did not miss out on any interest.
Posted by: WrathOfGates at March 2, 2009 10:37 PM
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