Q: Over the summer, my husband and I broke the rental agreement for our Chelsea apartment and moved to the suburbs. Our landlord told us that we could only get out of the lease if a replacement tenant was found. We completed the tour, handed in the keys and continued to pay rent every month while the landlord looks for the replacement. But how do we know if he's found someone? Is it possible that the apartment has been rented and that we are still paying rent?
ONE: If you decide to terminate a New York rental agreement, your landlord must use reasonable efforts to re-let the apartment at the same rent or the current market rent, whichever is lower. If he takes these steps, you will be on the hook for rent until he finds a new tenant. So how do you know if the landlord is even trying to rent it? Check websites like StreetEasy to see if they are listed.
If you can't find the listing, create a little trouble and call the leasing office. Ask if the apartment has been rented, and if not, ask if it is even offered for rent. If it is not rented or on the market – which is quite possible given the slow rental rate – you are free of your responsibility.
If the apartment was rented at a lower rental price, you are responsible for the difference. However, if the landlord has not tried to find a new tenant, you are no longer obliged to pay the rent. You could even sue the landlord for the months you paid when the apartment was vacant.
Regardless of what you find out, you might want to stop paying rent right now. "This will put more pressure on your landlord to re-rent the apartment," said Samuel J. Himmelstein, a Manhattan attorney who represents tenants. "What pressure is this landlord under to rent again if he gets rent from the old tenant?"
The landlord can sue for the rest of the tenancy. But he had to show that he was making good faith efforts to find a new tenant. If you fail to do so, you will be released from your obligation and the case will be dismissed. If he did, you would be negotiating a settlement in court that may be less than what you owe now. So you don't have much to lose at this point if you hold on to your money.
Sign up here for weekly email updates on residential property news. Follow us on Twitter: @nytrealestate.