Q: I am a real estate broker and I represented a tenant who now wants to vacate his apartment prior to the expiration of the original rental term (eight months are left on the lease). The tenant would like to know if the landlord has an obligation to mitigate the tenant’s damages by trying to re-let the apartment to another renter for the balance of the lease term.
A: No, unless otherwise provided for in the lease between a tenant and a landlord, a landlord in New York generally does not have an obligation to mitigate a tenant’s damages by re-letting the property to another tenant. New York courts have consistently held that landlords (regardless of whether the property is commercial or residential) are under no obligation to mitigate their tenant’s damages by placing a new tenant in the property if the tenant vacates the leased premises prior to the end of the original lease term.
Important Tip: New York law provides that a residential landlord cannot unreasonably withhold its consent to a sublease of an apartment (provided, amongst other things, that the tenant is renting an apartment in a dwelling having four or more residential units, the tenant has provided written notice to the landlord of the tenant’s request to sublet the apartment and the tenant has provided the landlord with a copy of the proposed sublease). Accordingly, prior to vacating a property early and thereby defaulting under a lease, a residential tenant should attempt to find a suitable tenant to sublet the apartment thereby mitigating his own potential damages.
The Legal Line Question by:
Neil B. Garfinkel
REBNY Broker Counsel
Partner-in-charge of real estate and banking practices at Abrams Garfinkel Margolis Bergson, LLP