If you want to ‘break’ your lease

Sections of this fact sheet are adapted, with permission, from “How to Break a Residential Lease in NYC:  A guide to tenants’ rights, remedies and liabilities”, by Sam Himmelstein for Housing Court Answers, November 2020.

Why are most tenants not usually allowed to break their leases? 

It comes as a surprise to many tenants that, in most circumstances, tenants do not have the right to ‘break’ the lease for their apartments (i.e. they cannot move out before the end of their lease – and if they do, they can be charged for the remaining months). The good news, however, is that the same rule works the other way around: Your landlord is similarly unable to ‘break’ your lease (i.e. you cannot be told to leave before the end of your lease) because, for instance, another tenant comes along who is willing to pay more than you. The purpose of a lease is to legally bind both parties to certain conditions, including the length of time the tenant will rent the apartment, and the rent to be charged during that time period.

What are my options for moving out before the end of my lease?

If you want to move out of your apartment before the end of your lease, you may be able to get your landlord to agree to do so – especially if you’re willing to bend a bit. (See question below “What’s the best way to approach my landlord if I want to break my lease?”)

If your landlord agrees to let you end the lease early, get the agreement in writing, signed by both you and your landlord (preferably in front of a notary) and keep the signed document for your records.

In certain limited situations, you may be able to establish that your landlord has sufficiently breached their end of the contract, and that as a result, the contract is void. Be advised that establishing this legal argument is complicated, and you should seek legal counsel before trying this. If you believe that your landlord breached the contract, but your landlord disagrees, be prepared to defend your position in court, and potentially be liable for the remaining rent.

What happens if I move out mid-lease without my landlord’s permission?

If you move out before the expiration of your lease and don’t pay the rent for the remaining months, your landlord might sue you for the uncollected rent. If you no longer live in the apartment, your landlord will not be able to sue you in Housing Court, and will instead have to sue you in Small Claims Court, Civil Court or Supreme Court (depending on the amount owed).

If you cannot reach an agreement with your landlord and are unable to find a replacement tenant (See question below “What’s the best way to approach my landlord if I want to break my lease?”), you can simply move out and surrender possession of the apartment. You should completely vacate the apartment, notify the landlord in writing and return the keys. Send notice by certified mail, return receipt requested, and keep the proof of mailing for your records. The letter should state:

Dear [Landlord]:

The undersigned tenant of [Apartment Number] at [Address], New York, N.Y (“the apartment”) hereby surrenders possession of and has permanently vacated the apartment, effective immediately.  The apartment is vacant and there are no persons or entities in or claiming possession of the apartment.  All personal possessions have been removed and the apartment is in broom clean condition. You may re-rent the apartment.  

Sincerely,

[Your Name]

While fully vacating and surrendering the apartment does not mean your lease is terminated, it does trigger the landlord’s “duty to mitigate damages”, as outlined in the Housing Stability and Tenant Protection Act (HSTPA) of 2019. This means that if your landlord sues you for the remaining months on your lease, they must show that they made every effort to find a new tenant for those months.  If your landlord does find a new tenant and that tenant pays rent for part of your lease period, your landlord cannot sue you for those months that he collected rent from someone else.

What are the exceptions which allow tenants to break their leases?

Exceptions: Seniors

If you or your spouse is 62 or older, you can break the lease if you are re-locating to a nursing home, senior housing, or other adult care facility. You can also break the lease if a physician certifies that you can no longer live in your home (for example, you can’t walk up the stairs in a walk-up, or you can’t live alone any more) and you plan to move in with family members. You must give your landlord 30 days notice (the 30 days must include a full rent payment period) and your notice must be in writing and include proof.

Exceptions: Military Personnel

If you are going into active military service, you can break the lease if it’s in your name. You must notify the landlord in writing and provide a full month’s notice.

Exceptions: Victims of Domestic Violence

If you have a court order of protection and your safety is jeopardized by remaining in the apartment, you may be able to break the lease with ten days’ notice to your landlord. If your landlord does not voluntarily release you from the lease after you provide proper written notice, you can ask the Family Court judge to order the lease terminated.

What if I am unable to pay the rent?

Inability to pay is not grounds for terminating a lease. Your landlord may take you to court in a nonpayment case if you fall behind in the rent. You might be able to reach  a settlement agreement in the court case which releases you from the lease and releases you from the obligation to pay ongoing or back rent, but this must be done through a negotiation. Be sure to ask for help from the judge, the judge’s court attorney, or the court’s Help Center, to make sure that your settlement agreement releases you from all future obligation to pay rent and makes clear the moving out requirements. 

For more info, see our page on if you just can’t afford the rent.

What if my landlord has refused to make essential repairs or provide essential services?

All tenants in New York City have the right under the law to certain basic services (heat, hot water, plumbing, extermination), to timely repairs, and to a standard of living conditions. You may have rights to additional services (such as an elevator or security) which are outlined in your lease.

If your landlord fails to make repairs or provide these services, you can use the law to force your landlord to provide these things by taking your landlord to court or complaining to state and city agencies. (Read our information sheets on: Getting Repairs, Heat and Hot Water, Broken appliances, Bedbugs, and Mold.) This means that in most cases your landlord’s failure to make repairs or provide services does not allow you to break the lease, but you do have many ways to force your landlord to make the repairs or provide the services, including suing your landlord in an HP Action.

However, if the apartment is “unfit for human habitation” or if your landlord deprives you of access to the apartment, the law gives you the right to break the lease, move out, and not owe the rent going forward. Be prepared for your landlord to sue you for the unpaid rent anyway – including additional months remaining on your lease. The determination of whether or not the apartment is unfit to live in, or whether you were deprived of access to it, would be up to the judge if your landlord sues you for the unpaid rent. Before pursuing this path, you are strongly advised to discuss the situation with a lawyer.

What if the apartment was not ready for occupancy on my move-in date?

If the apartment wasn’t ready for move-in at the start of your lease, either because renovations were not completed or because the previous tenant was still there, the landlord must release you from the lease and refund all the money you paid. Generally “wasn’t ready” means that your landlord would not allow you to move into the apartment, not that it needed minor cleaning nor that minor alterations hadn’t been completed.

What if the condition of the apartment was different from how it was represented by my landlord, an agent of the landlord, or by a real estate broker?

Most apartments are rented ‘as-is’; some initial leases indicate work to be completed or appliances to be installed, and in these cases, tenants are entitled to whatever is described in the lease. However, your landlord’s failure to provide these services on the move-in date doesn’t entitle a you to break the lease unless the apartment isn’t habitable.

What is the best way to approach my landlord if I want to break my lease?

• Negotiate, negotiate, negotiate: Reach out to the landlord. If there are extenuating circumstances, explain your situation. See if you can reach an agreement to terminate your lease, such as giving up your security deposit and paying a month or two of rent. Negotiate slowly and deliberately. Don’t put your final offer on the table at the beginning of the negotiations. Don’t betray your anxiety to the landlord. Don’t bargain against yourself. Reaching an agreement with your landlord can help you avoid being sued for the rest of the lease later and can give you peace of mind. If you do reach an agreement, it is critical to get it in writing and signed by the landlord. A lawyer can help you do this, though private attorneys can be expensive (see our page on how to find a lawyer)

• Give as much advance notice to the landlord as possible, offer to be flexible in allowing the landlord to show the apartment and offer to help find a replacement tenant.

• Where possible, communicate in writing-email is fine-to make a written record.

• If you are claiming financial hardship, be prepared to prove it to the landlord if they ask.

• Keep your communications between you and the landlord. The landlord will be concerned about the “domino effect” of making an agreement with you and then having other tenants want the same deal.

• If your landlord says your apartment is not rent-stabilized, obtain the rent history from the Division of Housing and Community Renewal to see if you can make an argument that your apartment was illegally deregulated and you were overcharged. This can be a very powerful bargaining chip and might even give you second thoughts about leaving.

• If you are a rent stabilized tenant, even though vacancy deregulation was repealed by the Housing Stability and Tenant Protection Act of 2019, your landlord might be happy to see you go in order to develop the property or combine your apartment with a neighboring apartment to deregulate it.

If my landlord and I cannot reach an agreement to break my lease, what are my other options?

Request to assign your lease to a new tenant. If you want to assign the rest of your lease to another tenant, you are responsible for finding a suitable replacement tenant. Submit your request for assignment with information on the proposed replacement tenant in writing. If the landlord unreasonably refuses the assignment, there is no assignment but you are released from the lease on thirty days’ notice. If the landlord reasonably refuses consent (the proposed assignee was not in good financial standing or had criminal history etc.), there is no assignment and you are not released from the lease. If you believe that your landlord unreasonably refused consent, you must keep careful documentation and be prepared to defend yourself if the landlord sues you for remaining rent.

If you need to break your lease because you just can’t pay the rent, see our pages about your right to a roommate, paying the rent, and  your right to sublet your apartment.