Legal Question in Real Estate Law in New York

Re: How to get out of a current Lease?

New York's Real Property Law does provide grounds for a tenant to break a lease and NOT thereby be liable to the landlord for any further rent payment on the remainder of the lease.

"Constructive" eviction is a ground for breaking a lease with NO further liablity for subsequent rent payments on what would have been the reaminder of the lease. RPL Section 227 allows a tenant to break the lease and leave the premises with no further liability for subsequent rent to the landlord, if the building is has been either destroyed or rendered "uninhabitable, and unfit for occupancy" provided that this damage to the building is not due to the tenant's own neglect and/or fault, and, provided that your lease does not contain a "destruction clause", i.e., an express agreement between the landlord and you, that in such cirumstances, the landlord retains the right to repair and restore the premises and to continue to demand subsequent payments under the lease. These circumstances are called "constructive" eviction because even though the landlord has not actually evicted the tenant, the condition of the premises make it impossible for the tenant to continue to live there as if the tenant had actually been evicted.

It is questionable whether the repairs which your landlord has so far not made are sufficient to justify breaking a lease under RPL 227. In any event, before breaking the lease on grounds of RPL 227, the tenant should leave a "paper trail" to prepare for the eventuality of having to defend a case of "constructive" eviction in court if the landlord proceed to sue the tenant for unpaid rent. Write a letter to the landlord detailing the repairs which need to be made and keep a copy for your own records to present in court if necessary. Afterwards, the landlord must be given reasonable opportunity to make these repairs. Before you leave the apartment, photograph or videorecord (with date stamp), the defects in your apartment which you claim to make your apartment uninhabitable under Section 227 of the Real Property Law.

Note that even after conducting all of the above preliminaries, the landlord may sue you in court for unpaid rent, and you may not be able to persuade the court that whatever repairs were needed were sufficiently severe to justify breaking a lease under RPL 227, in whihc case you will incur the costs (both of money and of time) of defending yourself in court in addition to having to pay the landlord the rent payments on the remainder of the lease.

Re: How to get out of a current Lease?

In my previous answer to this question, I discussed the possibility of breaking a lease on grounds of "constructive eviction" under Section 227 of New York's Real Property Law.

I should also have noted that rent-controlled tenants can terminate their tenancy whenever they wish without notice.

If the repairs needed in your apartment may be too minor to justify breaking the lease on ground of constructive eviction, there may be another way to break your lease with no further liability for subsequent rent payments: assigning your lease.

Assignment of the lease transfers the rent payment obligations on the remainder of your lease to the assignee you select who will occupy your apartment after you leave for the remaining term of the lease. However, there are problems in considering this course of action: Section 226-b of New York's Real Property Law does not allow the tenant to assign a lease without the landlord's prior written consent unless the landlord can be shown to have UNREASONABLY refused such consent: i.e., if the landlord refuses the consent WITHOUT giving any reason, then that is final, since the landlord has not unreasonably withheld consent. Moreover, even if the landlord has consented, (or has UNREASONABLY withheld consent), and you do assign the lease, if the assignee fails to make any rent payments under the assigned lease, then you are once again liable for any such rent payments which the assignee does not make.

Finally, note that under Section 227 of the Real Property Law, senior citizens can break their lease and move out with no liability for subsequent rent payments if they are either moving in with a family member for medical reasons, or moving in to any of the following: residential healthcare facility; an adult care facility; less expensive housing in a complex for senior citizens or housing project.

Note also that tenants who are going into active military service can break the lease with no subsequentliability for rent payments after providing the landlord writien notice. (The lease will then end 30 days after the next rent payment is due).