Hoboken Legal Beagle – 4/1/2008
[note: If you want your questions answered, send email to Hoboken411@gmail.com (you MUST put this in the subject, or it may get overlooked: “Hoboken411 Legal Question“), and each week I’ll pick one (or maybe two – depending on the simplicity) question(s) that will be responded to by Hoboken411’s legal mastermind.]
Today we have a chunky and very lengthy Q&A about a tenant/landlord situation.
“Hi. I have a legal question that I’d love to get answered.
My wife and I were in the process of buying a house this winter before our current apartment’s lease came up for renewal. We told our landlord that we were currently shopping for a place to buy and asked if we would be able to break the lease without any problem when we buy the house. We were told that it would be totally fine as long as it was not in the winter as that’s a hard time to rent. He also made a comment to the effect that our current rent was a great deal and how that apartment could rent for more money.
After a couple of months of looking, we found a place to buy. We told our landlord roughly 50 days in advance that we would be breaking the lease and were informed at this time that we would be responsible for the rent until they can find someone else to live there. This was never mentioned to use at the time of resigning the lease and had this been the case, we would’ve given a second thought to resigning. A few days later, we started seeing ads for our place popping up asking for more money than we are paying now, as well as a broker’s fee.
People have been looking at the apartment for the past two weeks but so far nobody has taken it. We still have 30 days left before we move out and this is a big stress on us. Hoping to help our cause, we asked the landlord if we could take out independent ads for the apartment in hopes to find someone to take over the lease. I also mentioned that there is absolutely no way we can afford to pay rent on this place while at the same time paying mortgage on our house and that I have no intention of doing so. The landlord then told me that we are not allowed to do that as they want to be the ones that find the new tenets.
It is obvious to me that they do not want us doing this because they know they can get more money for the apartment as well as a broker’s fee. (The landlord is also the brokering agency.)
I would like to know how protected we are from bearing any responsibility to this apartment should it not rent in the next 30 days. Thus far, the landlord has been making an attempt to rent it and assured me that it will rent this month and not to even worry about anything, but naturally we would like to be assured that we are not going to be responsible for these payments in the unfortunate event that it does not rent. To me (and other people I’ve spoken with), the fact that we are prohibited from making any attempts to have someone else take over our lease is grounds enough to relive us of the responsibility to keep paying. Am I correct in this thinking, and what else should we do to protect ourselves should we have to go to court over this? I’ve already printed out the ads as proof the apartment is being advertised for more money and a broker’s fee and documented the time and date we spoke to them regarding these issues.
See the Legal Beagles advice after the jump!
Hoboken411 Legal Beagle Says:
So far so good, the two of you should have your own reality show. Here’s my comments and advice.
First, since the landlord is the broker and is asking for more than your current rent you are already in a great place. A landlord has an affirmative duty to mitigate damages but has no right to make money on a tenant’s default especially with the combo of higher rent and a month fee.
Big question: Has the unit been put on the MLS, in other words can any Realtor rent the place or only your landlords company.
Is your documentation in the form of certified letters. Email’s and notes to yourself are not the best evidence of your actions. Get the letters out certified today if you have not done it already.
“Taking over your lease” is not really an option. However, finding a tenant that would rent your place for the rent you now pay and then having that person make a offer through you by certified mail and having that person be willing to come to court if they don’t get the unit would be great.
BIG POINT !!! Have you checked to see if you unit is rent controlled. Go to rent control immediately and check out your legally certified rent, you may be very very very happy with the result. Also, check to see if the new asked for rent is allowed by rent control. Rent Control laws are different in each City.
There are various ways that this could play out.
First, when you move out, pay the rent for the month in which you leave, the landlord then has 30 days to tell you in writing how he applied your security deposit for damages. Be sure to take all the photos necessary to show you have not damaged the unit. If, after 30 days, the landlord has not returned your security deposit, you can file a complaint against the landlord in Small Claims Court.
The Rent Security Deposit Act states that if the court finds that a landlord wrongfully refused to return all or part of a tenant’s security deposit, the court must order the landlord to pay the tenant double the amount of the security deposit if it is not returned at all, or double the amount that the landlord wrongfully deducted from the deposit.
When you file your Small Claims Court complaint, make sure you ask for double the amount of the deposit. If you go to Small Claims Court, also write on the complaint the words “together with interest and costs of the suit.” You should get the interest and the money that it costs you to file the complaint, fees may vary. The court should also award you reasonable attorney’s fees if you hired an attorney.
Of course the landlord could try to sue you for unpaid rent for the time the place is not rented. Even if the landlord does tell you in writing that he applied your security to rent, you should still file a complaint in small claims for the return of your deposit.
Of course do not pay any rent to the landlord once you vacant.
I would also advise you to find a lawyer that would charge you an hourly rate, approx $250 these days, for a consultation regarding the particulars of the situation and how to fill out the forms and to give you a more detailed overview of your situation This makes more sense than hiring an attorney since most lawyers in this area would charge at least $1,500 for filing a small claims case (and to be honest, with the delays and waiting time and mediation and adjournments and the attorney’s obligation to continue representation of a client in court, most lawyers would rather not even take a case where their fee could be more than the damages, and to be even more honest, starting in with a lawyer on an hourly rate for such a case would be like jumping into the fire to get out of the frying pan) .
And one last thing, don’t stress out on such a thing as this. Birth, death, disease, divorce, sick children and a host of other things are stressful. This stuff, nasty lying cheating landlords is the stuff of current dramatic stories and tales of the good old times when you get old. Take a fun, proactive approach and have this be a interesting learning experience for you and your wife. I know it sounds counter intuitive but if you push this all the way, go to court, oppose the landlord, get a judgment, deal with the bureaucracy, it can all be a much more fun and bonding thing to do as a couple rather than some stupid trip to the Bahamas.
Your are on the right track, but stop stressing and keep learning and as Flava Fav sings “Fight the Power that Be”
Send your questions in for next week’s Q&A session!
And remember, these answers are coming from a flying beagle, and should not be used as in place of competent advise from a human attorney. This feature is intended to give you legal information, not legal advice and is for general guidance only. Use at your own risk, and it’s recommended that you retain counsel on your own. Hoboken 411 is not liable for any loss, injury, claim, liability, or damage related to your use of the site, whether from errors or omissions in the content of our site or any other linked sites, from the site being down or from any other use of the site. In short, your use of the site is at your own risk.