Breaking a Lease

3.1 Introduction

There are many reasons a tenant may want to break their lease or rental agreement. Depending on your rental agreement, however, you may be responsible for paying rent until you or your landlord can find a new tenant. In this section, you will find information regarding the most common ways to break a rental agreement.

3.2 End of Lease or Month-to-Month

If you have a lease for a set period of time, you do not need to give your landlord any notice that you plan to move-out at the end of your lease term. If you rent your home on a month-to-month basis, however, then you are required to give one-month’s notice to your landlord before you move out. If you are a month-to-month tenant and do not give your landlord proper notice, you may be liable for the next month’s rent. Please refer to New York Real Property Law Section 232-b.

3.3 Mutual Termination Agreement

The most straight-forward way to break your lease or rental agreement is to ask your landlord if they will agree to end the agreement early. If your landlord agrees, you may want to have them sign a written termination agreement, whether or not the original rental agreement was in writing. In the termination agreement, you would want to include (1) the new move-out date and (2) whether you or your landlord owe each other any money.

3.4 Subletting or Assigning

If your landlord will not agree to a mutual termination, you may want to consider subletting your rental unit or assigning your rental agreement to another. Generally, assigning is preferable to subletting if you do not plan to move back in.

“Subletting” is when you make an agreement to rent the space that you rent to another person. If you sublet, you will still be financially responsible if the person you rent to fails to pay rent or damages the apartment.

“Assigning,” on the other hand, is when someone else takes over a lease or rental agreement completely. When you assign your lease to someone else, your rental agreement with the landlord ends, and you are not liable if the new tenant fails to pay rent or damages the apartment.

Leases may have restrictions on whether a tenant can sublet or assign their lease, and whether they need the landlord’s permission to do so. Even if a rental agreement says otherwise, under New York State law, a landlord cannot unreasonably deny a request to sublease or assignment.

If a landlord unreasonably withholds their consent to an assignment, the landlord must agree to terminate the rental agreement on 30-days’ notice from the tenant. If a landlord reasonably withholds their consent to the assignment, however, then the lease continues and the tenant is still responsible for the remaining rental payments.

If a tenant rents a unit in a building with four or more residential units, the landlord cannot unreasonably withhold their consent to a sublease. A tenant must inform their landlord of their intent to sublease by certified mail, and the tenant must include:

the term (dates) of the sublease;
the name of the sublessee;
the address of the sublessee;
the reason for subletting;
the tenant’s new address;
whether any co-tenants have consented to the sublet; and
the sublease agreement.

A landlord then has 10 days to ask for any additional information they need to decide whether they will consent. The landlord must respond within either 30 days of the initial letter or 30 days after the date the tenant provides any additional information requested, whichever is later. If the landlord does not respond, they are deemed to have consented. If the landlord reasonably withholds consent, however, the tenant cannot go forward with the sublease.

For tenants living in a building with 3 or fewer residential units, the right to sublease is controlled by the lease. Also, these laws do not apply to those living in government-subsidized apartments.

These rights cannot be waived, even if your lease says otherwise, or if you don’t have a written lease. Please refer to New York Real Property Law Section 226-b.

3.5 Survivors of Domestic Violence

If you or a member of your household is experiencing domestic violence and you need to move out of your rental unit for fear of continued domestic violence, you are able to terminate your lease on 30-day’s written notice to your landlord.

The Advocacy Center of Tompkins County provides support, advocacy, and education to survivors of domestic violence. If you or a household member are experiencing domestic violence, you can contact the Advocacy Center by calling (607) 277-5000 or by visiting https://www.actompkins.org/#.

You are also required to submit proof of the domestic violence to your landlord within 25 days of your notice to terminate. This proof can come in many forms, including a sworn, written statement by a police officer, doctor, nurse, lawyer, social worker, therapist, clergyperson, or other “qualified third-party,” such as a letter from the Advocacy Center. Your landlord is required to keep all information you have shared with them during this lease-breaking process confidential, unless you give them written authorization to release this information. They are also not allowed to tell a potential future landlord that you terminated your lease early or why you ended your lease.

After the lease has been terminated, you are no longer responsible for rent due under the lease after the date of termination. Any portion of rent prepaid by you must be returned within 10 days of the termination and any security deposit paid must be returned in accordance with New York’s laws regarding security deposits.

These rights cannot be waived, even if your lease says otherwise, or if you don’t have a written lease. Please refer to Real Property Law Section 227-c.

3.6 Tenants Who Are Federally Subsidized and VAWA

If you are a tenant who lives in a public housing project, has a Section 8 voucher, or lives in a rental unit that receives federal housing assistance, and are experiencing domestic violence, dating violence, sexual assault, or stalking, you have additional rights under the Violence Against Women Act (VAWA). Please refer to 34 USC § 12491(b)(1).

Protection Against Eviction: Unless your landlord can show that there is “an actual and imminent threat” to other tenants and employees at the property, they may not evict you for reasons related to domestic violence you are experiencing. Some examples of possible lease violations related to domestic violence are: being involved in “criminal activity” when the activity is the violence itself, “nuisance” or “disturbance,” or regularly having the police called to your home.

If you are notified of eviction based on domestic violence you are experiencing, it is a good idea to speak with a lawyer as soon as possible. Landlords are still allowed to evict you for reasons unrelated to domestic violence.

If the reason you are being evicted is related to domestic violence, you should let your landlord know, in writing, that the violation they are alleging is due to domestic violence and that you have protection against eviction under VAWA. If the landlord asks for proof, you must provide it within 14 business days (don’t count weekends or holidays). Your proof can be: filling out and sending your landlord the HUD self-certification form, an Order of Protection, police reports, other court reports, or a statement from a third party like a victim-service provider like the Advocacy Center, a mental health professional, a medical professional, or a lawyer when signed by both you and the third party under penalty of perjury (notarized). Please refer to 34 USC § 12491(c)(1)-(3) for more information.
Protection of Section 8 Status: If you and your offender are on a Section 8 voucher together, the housing authority can end your offender’s assistance while still providing you with your voucher.
Ability to Move Within First Year on Voucher: While many housing authorities don’t allow Section 8 tenants to move during the first year of their lease, or move more than once in a twelve-month period, you are allowed to do either under VAWA.
Ability to Receive an Emergency Transfer to Another Available Unit: Your landlord, if covered under VAWA (a lawyer can tell you if your landlord is), is required to have an emergency transfer plan in place for tenants who are victims of domestic violence, dating violence, sexual assault, or stalking, and believe that they are threatened with immediate harm if they remain in the home or they were a victim of sexual assault on the premises within the past 90 days. To ask for an emergency transfer, do so in writing to your landlord. Your landlord must keep your new location confidential from your offender under any transfer plan. Please refer to 24 CFR § 5.2005(e) for more information.

3.7 Constructive Eviction

If there are issues with your rental unit that force you to move out, then you may be able to claim that you have been constructively evicted. Please refer to the Constructive Eviction subsection and the Building Issues and Maintenance section for more information.

3.8 Landlord’s Duty to Mitigate

If a tenant chooses to move out before the lease or rental agreement is over, and they are unable to sublet or assign their lease, then the landlord has a duty under New York State law to mitigate their potential damages. This means that the landlord is required to make documented, good-faith attempts to re-rent the apartment at the fair market rate or at the rate the tenant pays.

If the landlord successfully re-rents your unit at a fair market rate or at the rate in the lease, then the tenant’s lease terminates and they are not responsible for any remaining rent payments.

These rights cannot be waived, even if your lease says otherwise, or if you don’t have a written lease. Please refer to Real Property Law Section 227-e.

This guide is a living document, and may be subject to change. It contains general information on your rights as a tenant in upstate New York, and is not a replacement for legal advice from an attorney. To get specific legal advice or representation in court, Tompkins County residents can speak to the Tenants Legal Hotline at (607) 301-1560 or visit https://ithacatenantresources.org/tlh or contact Legal Assistance of Western New York (LawNY) at 607-273-3667