"But I don't live there anymore!" Lawsuits seeking rent from former tenants are on the rise

August 5, 2015

Dear Friends,

Yesterday I attended the summer meeting of the Consumer Advocates Task Force, which meets periodically at a Legal Aid Society office in lower Manhattan to discuss the latest developments in the area of consumer law. One of the items we discussed is the growing number of lawsuits by landlords seeking rent for an apartment after the tenant has moved out. I wanted to give you a bit of background on this issue because these cases are multiplying and may someday affect one of your clients.

When — and where — does this kind of case arise?

This kind of case comes up in one (or both) of the following two scenarios:

  • First is where a tenant does not pay rent for a period of time and then moves out of the apartment.
  • Second is where a tenant has paid her rent on time but moves out before her lease contract expires — leaving a period of months remaining on the lease for which she hasn’t paid rent but was expected to.

This kind of lawsuit takes place not in Housing Court but in Civil Court, for the following simple reason: Housing Court can only deal with cases where the tenant still lives in the apartment in question. Once the tenant moves out, Housing Court no longer has "jurisdiction," i.e., it lacks the authority to deal with the case. The case is no longer about housing and instead just has to do with an alleged debt – which the Civil Court does have the authority to deal with.

In scenario #1 above, the tenant may have stopped paying rent and moved out before the landlord got around to suing in Housing Court, in which case the initial lawsuit will occur in Civil Court. But sometimes the tenant will previously have appeared in Housing Court in a nonpayment case, and the tenant will have signed a stipulation agreeing to pay a certain amount, or a Housing Court judge will have indicated that a certain amount is owed.

In scenario #2 above, the tenant moves out — or is evicted — during her lease term but does not obtain permission from the landlord to break the lease, which is a binding contract. (Note that there are some circumstances, involving a move to subsidized housing, where such permission is not required.) In such a case, the landlord can sue the former tenant for having broken that contract and demand payment for all the rent due through the end of the lease. Of course, as soon as a new tenant moves in, the old tenant is not liable for any remaining months of rent on the lease. But in New York, the law says that a landlord does not have a duty to actively try to find a new tenant.

Sometimes a landlord sues a tenant for back rent and future rent

The recent Civil Court case of Bronx Park East v. Santiago is one of these double-whammy cases, where a former tenant is sued for rent covering a period of time when she lived in her apartment, and when she no longer lived there.

This case involved a landlord who previously sued the tenant, a Ms. Santiago, in Housing Court for nonpayment of rent while she was living in the apartment, and the landlord obtained a court judgment against her. The landlord later evicted her and re-rented the apartment to a new tenant a couple of months later. But sometime after that, in a new court case (the one named above), the landlord sued Ms. Santiago (who was now living elsewhere) in Civil Court for what it claimed was $5,752.88 in rent and fees. Before Ms. Santiago obtained a lawyer, the landlord was able to win the Civil Court case, and the court issued a judgment saying that Ms. Santiago owed every penny of the alleged $5,752.88 debt. But Ms. Santiago’s lawyer persuaded the judge to take a new look, and in the final decision (which you can read by clicking here), the judge said that in fact the tenant owed only $474.48.

Why did the judgment amount in this case drop by 90 percent once the defendant got a lawyer involved? There are a number of reasons, including bad accounting by the landlord, the landlord’s improper inclusion of legal fees in the amount it said was owed, and the landlord’s attempt to charge the former tenant the full rent for a month in which the former tenant lived in the apartment for only a few days. The bottom line is that the case turned out to be fairly complex, as these cases often do, and only by obtaining a lawyer was the former tenant able to get the judge to scrutinize it and obtain what looks to be a fair result.

What if your client is sued?

If one of your clients is sued for rent for an apartment he or she no longer lives in, your client should not ignore the lawsuit and should contact one of the many legal services offices in Manhattan that handle debt lawsuits. And of course, you should also feel free to refer your client to one of the Elderly Project’s many monthly legal clinics for free advice and referrals.