I made the mistake of signing a two-year lease on my one-bedroom apartment in June 2019. I’d been living here for a year, and I loved it. I had a good job at a start-up that was growing a ton. It seemed like a great idea to lock in a decent price ($2,000 a month in a neighborhood I loved). But then the pandemic hit, and I got laid off last July. I managed to get a waitressing job for the summer, but that dried up in November. I’ve continued to look for jobs and had a couple of interviews, but nothing has panned out yet.
My landlord was nice at first, but now I’m several months behind on rent and his tone has changed. I asked if I could break my lease, and he said I would owe him the full amount of rent through June if he couldn’t find a new tenant (which is a real possibility). That seems like a huge risk to take (and over $10,000, plus the $7,000 I already owe him). I’ve been paying him whatever I have at the end of each month, mostly from unemployment benefits, but it’s nowhere near enough. He’s stopped responding to my emails asking for a break.
My sister has offered to let me move in with her while I get back on my feet, and that would be a lifeline. But I’m terrified of the amount of debt I might have if I can’t break my lease first and of what that’ll mean if I ever try to rent an apartment again. Plus, there’s a chance my landlord could sue me if I don’t pay him back soon enough.
I don’t think I can afford a lawyer, but I don’t know what else to do. I get it that my landlord has bills to pay too, but in my case, the money just isn’t there. There’s also a clause in the lease agreement saying that I can’t sublet. What are my options for getting out of this? I’m desperate.
Look, I get that “landlords are people too,” but your situation is obviously untenable and no reasonable human should keep trying to squeeze money out of your dry bank account. That said, you can probably assume your landlord is desperate too and may not be acting reasonably right now. Either way, you need to extricate yourself, and for your own sanity, you want the break to be as clean and amicable as possible.
You have a few options. None of them will be quick or easy, but they’re infinitely preferable to sitting at home all day stewing about how much it costs and falling deeper into debt. Presumably, you’ve already told your landlord you lost your job since you’ve asked to break your lease. But if you haven’t put together a comprehensive notification that you are COVID-affected, have lost your income, and can’t afford to pay rent, along with a formal letter asking to vacate the apartment and be released from your rental agreement on a certain date, it’s worth a shot. You should also outline a plan to pay him the $7,000 in back rent that you owe (perhaps in monthly installments), minus your security deposit, which he will probably keep anyway.
If your landlord is halfway decent, he should accept this, perhaps after some haggling. If he doesn’t, or if he continues to ignore you, then it’s time to get more aggressive. (Remember to keep it civil even if he gets rude or nasty. Write each email as if it might be read by a housing-court judge someday, although I hope it doesn’t come to that.)
To figure out your next steps, I called Elizabeth Donoghue, a tenants’-rights lawyer based in New York. She recommends trying to “assign” your lease, also known as finding someone to take over the remainder of it. That person would need to meet similar qualifications as you did (provide references, proof of income, a guarantor if necessary, etc.). An obstacle to this solution is that potential renters may not be willing to pay the full amount you’re currently paying since rents are down in many areas. If that’s the case, you’ll be on the hook for the difference. But that’s still much better than owing the whole thing.
If you get lucky and find a qualified person to shoulder the rest of your lease (or at least most of it), you would notify your landlord that you have found a suitable assignee and would like to transfer the rental agreement to that person under Real Property Law 226-B. Your landlord has to provide written consent for that to go forward. If he refuses without any good reason, you’ll be released from the lease on 30 days’ notice.
So that’s one scenario. Another possibility is to see if your apartment or building has any “warranty of habitability” violations you could use to your advantage. Warranty of habitability is a broad rule that assures every tenant the right to a livable, safe, and sanitary apartment. If your landlord is letting issues slide, like leaks, vermin, or a broken heater, that could be your ticket out. Donoghue says she has used this clause to get clients out of leases in buildings where the staff wasn’t observing proper COVID precautions.
“In a number of my clients’ cases, they’ll send pictures of the issue to the landlord and say, ‘You’re not addressing this. We want out in 30 days,’” says Donoghue. “If there’s an actual violation that your landlord doesn’t want to get reported for, this can be one of the easier ways to get out of a lease.”
If you can’t pinpoint any warranty of habitability issues, you could consider requesting a “reasonable accommodation” to leave based on other health or safety concerns. For example, a friend of mine was able to break her lease when construction workers put plastic sheets over her windows, aggravating her spouse’s asthma. In another of Donoghue’s cases, her client managed to get out of her lease when she discovered lead paint in the building that was potentially hazardous for her kids.
“If you’re courteous and make it seem like it’s going to be better for your landlord to just let you go than to battle you on it, then many landlords will just say fine, and take your security deposit,” says Donoghue. “They don’t want a battle. Courts are backed up. And most landlords don’t have a lot of money right now to put up a fight either.”
But say your apartment is actually fine, the building doesn’t have any issues, and your landlord is within his rights to hold you to your agreement even though you can’t afford it. If that’s the case, your best bet could be to take the risk of vacating your apartment (with some advance notice and a letter of explanation, as I mentioned above) and hoping your landlord has the decency not to take legal action for the outstanding amount.
I understand this isn’t ideal, and no one wants to wait around to find out if they’re going to be sued. But Donoghue says a lot of tenants are taking this route for lack of other options and are planning to claim a “force majeure” defense if they do, in fact, get served with legal papers. A force majeure, also known as an “act of God,” is defined as “an extraordinary event” that prevents one from fulfilling a contractual obligation — like, say, a global pandemic that steamrolls the economy and strips you of your livelihood. It isn’t a get-out-of-jail-free card necessarily, and most residential contracts don’t include it. But it’s worth exploring.
In the meantime, your landlord has a legal obligation to mitigate his damages when you move out. That means he needs to put a real effort into finding a new tenant as soon as possible. If he cannot prove he has done this (if he never listed the apartment, for instance), you would have a case for not paying out the remainder of your lease. And if he does find a new tenant, you’re no longer liable for the months he’s able to rent the place. (Again, unless the new tenant is paying less than you agreed to, in which case he could go after you for the difference.)
Finally, I should mention that you could try hiring a lawyer. Given the amount of money you have at stake (about $17,000), it would be tough to justify the costs of doing so. Most tenant lawyers charge around $1,500 to $2,000 upfront, plus several hundred dollars an hour for negotiations, and it can be very difficult to predict total costs when you’re starting out. “We often don’t take cases unless we can be cost-effective,” says Donoghue. “For example, if the tenant is being sued for $20,000 [or less], we would likely decline.”
One upside to hiring a lawyer, even if it doesn’t save you much money, is that it will save you time and potential future headaches. “You’re always going to get a much quicker response and resolution with a lawyer, especially if your landlord isn’t calling you back. Many landlords use that strategy — they’ll just wait tenants out, and it becomes very frustrating,” says Donoghue. “But if I call them, they’re going to call me back.” If you decide to go the attorney route, here are some places to look for affordable ones.
Another factor to consider is the guarantor on your lease agreement, if you have one. If it’s someone other than you — like a family member — your landlord may go after them for what you owe. So if you haven’t already told them about your predicament, now’s the time. And you may want to involve them in your decisions about what to do next, since their money is at stake too.
Best of luck with this. It’s in everyone’s best interest to manage it quickly and smoothly so your landlord can find a new tenant who actually wants to be there.