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 (i.e. 6 months, 1 year, etc.), 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 (no agreed termination date for the lease agreement), 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.

An email might be a proper way to end a lease depending on the circumstances of your lease. If you have previously talked via email, the court is likely to find that an email can be written notice. However, it is essential that you receive acknowledgement and acceptance of the email as a valid form of termination. For this reason, it is recommended to have written proof of the notice of termination delivered to the landlord.

Termination and Non-renewal Notices

A termination notice is used to end a lease, while a non-renewal notice informs a tenant that the lease will not be extended beyond its current term. Both types of notices have specific requirements, particularly regarding content and timing.

Termination Notices: A termination notice is used to end a lease, while a non-renewal notice informs a tenant that the lease will not be extended beyond its current term. Both types of notices have specific requirements, particularly regarding content and timing. For termination notices issued prior to the end of the lease, the termination notice must be clear, unambiguous, and definite, stating the reasons for the termination with sufficient detail so the tenant can prepare a defense. Vague allegations can render the notice deficient. The notice should also advise the tenant that an eviction proceeding will be commenced if they fail to vacate.

Where the tenant’s occupancy is being terminated for a breach of the lease, a notice terminating the lease must be given. (Second & E. 82d Realty LLC v. 82d St. Gily Corp., 192 Misc2d 55, 745 NYS2d 371 (NYC Civ Ct 2002)). Additionally, the lease itself may require certain notices to cure and to terminate prior to the lease actually ending. Rent regulated tenants are entitled to additional protections. Landlords of rent-regulated tenants may have to provide specific notices to cure before summary proceedings may be commenced against the tenant. The specific rules regarding these notices vary from one type of rent regulation to another.

Non-renewal notices: If a landlord intends to increase rent by 5% or more, or if the landlord intends not to renew the tenancy, the landlord must provide advanced written notice to the tenant.

For non-renewal notices and notices of rent increase, the amount of advanced notice required depends on the tenancy length:

Tenants who have occupied the apartment for less than one year and have a lease for less than one year are entitled to 30 days’ notice.
Tenants who have resided on the premises for more than one year but less than two years or have a lease for at least one year but less than two years are entitled to 60 days’ notice.
Tenants who have either occupied the apartment for more than two years or have a lease term of at least two years are entitled to 90 days’ notice.

If a landlord offers a renewal lease after serving a termination notice, the termination notice may be waived. If a landlord accepts rent after the date the tenancy was supposed to end, the tenancy renews and the landlord must provide a new termination notice, with advanced notice, to end the tenancy.

If a landlord fails to provide a timely non-renewal notice before the original expiration of a written lease, as required by RPL § 226-C, the tenancy continues under the existing terms until the notice period expires.

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.

An email can serve as a mutual termination agreement as long as the email contains all of the essential terms of the termination, as it would be in a handwritten termination agreement, and does not go against the terms outlined in the lease agreement.

If a lease contains a clause permitting termination of the lease prior to the end of the term upon the happening of a certain condition, courts will uphold the exercise of the clause–provided it is done in accordance with the terms of the lease clause.

If a tenant seeks to break a lease early, the landlord is required to mitigate any damages stemming from the breach. The landlord must take reasonable and customary actions (offer the leased premises, show them to potential new tenants, among others) to rent the premises at fair market value or at the rate agreed to during the term of the tenancy, whichever is lower. If the landlord rents the premises at fair market value or at the rate agreed to during the term of the tenancy, the new tenant’s lease shall, once in effect, terminate the previous tenant’s lease and mitigate damages otherwise recoverable against the previous tenant.

If the landlord and tenant agree to a termination fee, this may be considered a liquidated damages clause. Liquidated damages clauses are not always valid, and it’s important to consult with an attorney to determine whether the fee is valid in your particular case.

In Irving Tire Co. v. Stage II Apparel Corp., the central issue was the enforceability of a liquidated damages provision in a lease termination agreement. The Appellate Court held that the stipulated $140,000 liquidated damages clause was an unenforceable penalty. The court reasoned that for such a clause to be valid, the fixed amount must be a reasonable pre-estimate of probable actual loss, and actual damages must be difficult to ascertain precisely. Here, the court found that damages stemming from a breach of the termination agreement were readily ascertainable, and the $140,000 sum was disproportionate to the landlord’s likely actual losses. Consequently, the court reversed the lower court’s implicit enforcement of the liquidated damages, reducing the judgment to reflect the remaining balance of the base termination fee, effectively deeming the excess amount a penalty. 230 A.D.2d 772.

In Elk 33 East 33rd LLC v. Sticky’s Corporate LLC, a commercial tenant broke their lease, and the lease said they owed all the remaining rent immediately. While courts often enforce these kinds of “liquidated damages” clauses in business leases where both sides are considered experienced, Elk 33 East 33rd LLC reminds us there are limits. The court stressed that even with these clauses, the amount demanded can’t be a penalty. It has to be a fair estimate of the actual financial harm the landlord will suffer. The landlord in the case wasn’t just demanding all the future rent – they also re-rented the space to a new tenant shortly after. The court said the landlord can’t have it both ways – they can’t collect rent from the original tenant for the entire lease and get rent from a new tenant for the same period. This starts to look like a penalty, not fair compensation. The court sent the case back to figure out exactly when the apartment was re-rented to make sure the landlord wasn’t getting unfairly “double compensated.” 228 A.D.3d 455.

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 assign.

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. An example of an event in which a landlord may reasonably withhold consent is that the original tenant did not followed the agreed procedure to notify assignment or sublease or did not provide the required information for landlord to evaluate approval.

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.

If you sublease your unit and your sublessee does not pay you the rent due under the sublease agreement, you can pursue a breach of contract claim in small claims court, city court, town or justice court, and state supreme court.

A landlord may charge a fee for a background check or credit check on the sublessee, but may not charge any additional subletting fees that are not listed in the lease. Real Property Law § 238-a. If the lease gives the landlord the right to charge a sublet fee, the landlord may do so, but the fee must be reasonable. Zuckerman v. 33072 Owners Corp., 97 A.D.2d 736, 468 N.Y.S.2d 639 (1983).

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. This includes advertising the leased premises and showing them, among others.

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.

One example of failing to fulfill this duty to mitigate is if after receiving notice the tenant wishes to break their lease, the landlord does not post any listings online or in any advertisements. Please refer to Real Property Law Section 227-e.

3.9 Additional Rights to Terminate the Lease

The tenant has the right to terminate the lease if:

The landlord does not give the tenant possession of the premises in a timely manner at the time stated in the lease;
The premises are damaged by fire or other casualty;
The tenant dies;
The tenant is entering active duty in the military and the tenant executed the lease before entering active duty, or the premises are occupied by the tenant or the tenant’s dependents. In such cases, the tenant may terminate the lease by written notice to the landlord at any time after starting military service. The lease termination is not effective until 30 days after the next date on which rent is due;
The tenant is (1) 62 years of age or older; (2) cannot live independently; (3) has an opportunity to live in certain specialized facilities including an adult care facility, a residential health care facility, senior citizen housing, subsidized low-income housing, or the residence of a family member. In such cases, the tenant must give notice to the landlord that includes a doctor’s certification and a copy of the lease or contract with the specialized facility. The notice is deemed delivered 5 days after mailing. On receipt of the notice, the lease termination is effective 30 days after the next date on which the rent is due;
The tenant or a member of the household is a victim of domestic violence and reasonably fears remaining in the apartment. In such cases, the tenant must deliver a notice to the landlord and to any co-tenants (but not to the perpetrator of the domestic violence) designating a termination date and stating that the tenant is unable to safely remain in the premises. The termination date can be no earlier than 30 days after the notice is delivered (the notice is deemed delivered 5 days after the date of mailing if it is sent by first class mail). Rent must be paid up to the termination date. The tenant must provide documentation of the domestic violence within 25 days after delivery of notice. Documentation may include a protection order, a complaint or police report, health records, or verification by a qualified third party.