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Uhh, we're talking about $750 here aren't we. Outside of all your righteous indignation is there really any evidence easily obtained to take the LL to small claims? Subpoenaing the LL's bank records? Forcing the new tenant to testify under oath? Bringing friends to testify on a verbal against a written lease? No evidence that the OP was forced out? Give me a break.
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Maybe difficult, but not impossible, especially in this case. All that needs to be proven is that the new tenant has taken possession of the apartment
.You've seemed to forgotten about expenses incurred finding a new tenant on the OP's behalf. It would be easier to prove the OP abandoned the apartment on that day.
Uhh, we're talking about $750 here aren't we. Outside of all your righteous indignation is there really any evidence easily obtained to take the LL to small claims? Subpoenaing the LL's bank records? Forcing the new tenant to testify under oath? Bringing friends to testify on a verbal against a written lease? No evidence that the OP was forced out? Give me a break.
Hey $750 is more important to some than others. I'd bet $750 is enough for a little bit of effort and aggravation for all but the most lazy. Who said anything about easy?
And FYI in New York state, filing a subpoena costs $15, hardly cost prohibitive and the cost of serving the subpoena. Since the bank is not going to be dodging subpoenas there is no rational reason not to take any of those actions. Subpoening the bank or utilities etc etc being the easiest subpoening the current tenant being the hardest and most risky. Whether the OP was forced out or not does not matter one bit. All that matters that hte landlord was collecting rent from two tenants at the same time. A Guide to Small Claims Court
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Originally Posted by modsquad81
.You've seemed to forgotten about expenses incurred finding a new tenant on the OP's behalf. It would be easier to prove the OP abandoned the apartment on that day.
If you read carefully the landlord refunded the OP deposit which acknowledges that there are no expenses for finding a new tenant, or else he would have withheld them from the deposit. The OP is not asking for his security back, he is asking for rent back. If the landlord wants those back he has to sue for them and prove they exist.
I hate to admit that I watch court shows, but there was a case almost exactly like this on Judge Judy or The People's Court the other week and the tenant won. The landlord made the case that he had to find a new tenant, but the landlord asked the first tenant to move to accommodate the new tenant and was therefore not out of any money and owed the original tenant rent.
You know what jdm? I have to agree with you. There is a risk of countersuit but if the OP can prove the money received is indeed the security deposit, (maybe LL wrote on the check "security deposit") then he has a pretty good case. And like you say, the return of the security would indicate that the tenant has terminated his tenancy satisfactorily, there should be no further monies due. OP needs to subpoena LL and request bank records for account he pays rent into (presuming current tenant pays into same account) not the security deposit account.
Having said all this it is likely this case will never come to trial. As soon as the LL receives the notice to appear he would call his lawyer who would begin charging for his time as soon as he picked up the phone not to mention the price he would charge to appear on his behalf in small claims. Cheaper to pay the $750.
Interestingly enough, the following allows you to file on line.
i thought the question was interesting enough to pass it by our attorney . can a landlord keep a security deposit just because a lease was broken? even if no damages.
the short answer ,no the landlord cant keep the security deposit unless the lease spells out that it can be forfeited if the lease is broken. typically its not . the standard lease forms most use have the security deposit protecting the integrety of the apartment period. if they dont pay you rent well then they still owe you rent. the deposit only covers damages to the apartment. they have to sue you for the money in order to keep it in lew of rent owed but in this case no rent is owed.
if the lease was broken and a new tenant found the same month no damages are considered . advertising and normal clean up arent considered since they have to be done at the end of lease anyway.
Last edited by mathjak107; 03-20-2011 at 02:45 PM..
as far as getting money back? its all in how this deal was structured and on whos behalf the landlord re-rented the apartment..
if you were being held to the terms of the lease then the new tenant should have been structured your sub tenant and they pay you for the rest of the month and you pay the landlord.at the end of the month the landlord issues them their own lease and your off the hook . but you didnt structure it as the above.
on the other hand you never got an agreement in writing as to whos behalf the landlord is re-renting for. if the landlord is re-renting on your behalf with written permission from you then he hasnt taken control back on the apartment from you. its still your apartment and he is helping mitigate your damages. unless you agree in writing that if he finds you a tenant and that tenant isnt considered your sub tenant that you will get the money back for the remainder of the month then its up to what the lease says. if there are no provisions for what happens at early termination then only a judge can award you back your money
you would have been entitled to that money back but now there is no correct answer as its something that fits in between the lines of the lease and isnt there so only a judge can award you back your money or not as it is his discreation. you would most likely get it back but thats the judges call.
whos controlling the apartment is a very important question when leases are terminated early.
most landlords dont really understand how things work and give tenants easy outs for breaking a lease unknowingly.
soooooo landlords ,pay attention here:typically a tenant will move out early after breaking a lease and the landlord will try to re-rent the apartment . if the lease spells it out and the landlord is telling the tenant they will be responsible for the rent until the apartment is rented the landlord has to be very careful about how they handle the following.
the landlord should get a letter from the tenant asking him to help mitigate the damages by finding a new tenant. at that point on the tenants behalf the landlord can paint, fix up and re-rent the apartment on the tenants behalf.
BUT! if the tenant moves out and the landlord goes in and fixes and paints and never got written authorization from the tenant to rent on his behalf to mitigate his damages then the landlord has retaken control of the apartment at that point for his own betterment and the tenant is off the hook from that day on even if the apartment is still un-rented. the landlord cant have it both ways.he cant claim he is still holding you to the lease terms and saying its still your apartment and at the same time taking control back from you and going in to your apartment and start fixing and painting to re-rent to someone else unless its in writting he is doing it on your behalf. if the ball is dropped here the tenant is off the hook.
folks its not always what you think will happen and thats why we have lawyers... its never what we dont know that gets us in as much trouble as the things we all think we know that aint so.
Last edited by mathjak107; 03-21-2011 at 04:02 AM..
I am now suing my landlord.
I had decided to accept his $400 so that I could just end this chapter of my life and call it a lesson learned. I really hated that he was soo cheap that he wouldn't even agree to $500 which would have been closer to two weeks worth of rent.
So I called my landlord and informed him I would accept the $400. However, the immature and cheap business man that he is will not answer any of my calls or texts. I called one a day every day and left very polite voicemails. He finally responded to a text message and said "I am not in NYC right now but I will mail you the check". That was over a week ago and whenever I try to contact him he won't answer. I think that is just immature. If he has decided he doesn't want to pay me then he needs to be a man and pick up the phone and tell me. Or be a chicken and have your lawyer call me.
So I am done chasing him. I filed a small claim and not for the $400 he had thought was acceptable. For the entire month's rent ($1150). Hopefully a text message can be used as evidence because it clearly states that he owes me money.
Thank you for all your responses. I did not know I could subpoena his bank records or the utility company for their records.
The check I cashed from him clearly states it was for the security deposit.
And I did not ask him to find a tenant that soon. I paid my March rent in full and on time which he had no problem cashing right away. I understand that if March 31st came and he did not find a new tenant he could have tried to sue me for April and May rent. However, this apartment is in a highly popular area. Also, the building has its own gym and laundry. The location to the highway and the subways is less than 5 minutes. I could be in midtown Manhattan in less than 15 minutes driving. If I took the subway less then 10. He would have had no problem finding a new tenant.
He was just greedy. That one building alone is worth over 2 million dollars. It is a new building and he charges a lot of rent for each unit. A one bedroom is $1600. I had a studio apartment. And this is not the only building he owns. So the fact that he couldn't even give me $500 for accommodating him clearly says "cheapskate." He knew I was nice and stupidly trusted him b/c in the past we never had an issue.
Oh and I understand that $750 (he really owes me at least $862.50) may not be a lot to some people, and maybe in the long run it's not, but I worked hard for that money. He didn't work for that money. He scammed me and got double rent for the month. I did not even get to enjoy the last days in that apartment b/c this thief rushed me out. If I wasn't so trusting I could have stayed there until March 31st and moved out properly. Moved out the way most people do.
So I have learned a lesson but I refuse to let this man think that if he ignores me I will just go away. I'm sure I am not the first person he has done this to in one way or another. I may not win the full amount but it's also a matter of principle at this point.
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