One misconception is that there is no CFO, so the tenant would not have to pay rent, which is not true. In some courts, like in Nassau, the judge would often not allow the landlord to collect rent on an illegal rental where there was no certificate, or it was a one family house being chopped up into a two or three family house. In Suffolk, the judges do not really care, so they would sometimes even uphold a money judgment for back rent even if the property was an illegal rental.
Would The Tenant Have To Pay Rent If There Was A Leak In The Roof?
Tenants commonly have the misconception they would not have to pay rent if for example there was a leak in the ceiling. This is just not true. Most leases are drawn with “the warranty of habitability” clause which is Habitability, , which a warranty that the house or apartment is fit for human habitation. When there is no lease the warranty is implied. If there are habitability issues in the premises, like the ceiling is leaking or there are mice, roaches, bedbugs, or something like that, then that would not relieve the tenant from paying the landlord rent; it would just mean the tenant may be entitled to an offset regarding what they paid the landlord because of these defects. Tenants have to follow procedure laid out in the lease to notify the Landlord of habitability defects and give the Landlord a chance to cure.
It would be very hard for a tenant to prove that the place was so bad that they should not have to pay rent. Most judges ask the person why they wanted to live there if it was that bad, and why they do not just move out. The tenant would not be able to get away with this argument.
Can The Security Deposit Be Written Off?
In most instances, the landlord would generally ask for one month’s rent upfront and then one month’s security deposit when a tenant initially took possession of a premises. The security deposit is to make sure the tenant vacated the premises and did not destroy the premises. It is also security against any future unpaid rent.
Tenants often call and tell me they are planning on moving out on 1 December but they do not know if they should pay their rent on 1 November because they gave a security deposit so they wanted the landlord to write it off. I have to tell them that they would probably be able to get away with it but they should not rely on it because technically, the security deposit does not count as rent. The security is security, the rent is rent.
It is like a double-edge sword, so I tell the tenant that if they left the place in a pristine condition and were able to get the landlord to sign off on it, they should not take that risk because they may find themselves writing off the rent and then the landlord might come in and say that such and such things were damaged and they might sue the person for the damages.
I generally advise the tenant to first communicate with their landlord and work out a surrender procedure where everybody would be happy. The tenant could tell the landlord they wanted to be out on 30 November, and they could invite them to come and take a look at the place, and then sign some paperwork indicating the place is in good shape and the tenant was surrendering their rights to the security deposit in lieu of paying the rent. This would be a fair way of doing it and most landlords would accept that.
Is It Acceptable To Co-Mingle The Security Deposit?
Landlords usually think of the security deposit as their money, although technically it isn’t their money. They are supposed to hold that money in trust for the tenant. I had an action dismissed against a tenant for damage to a property where I was able to prove that the landlord co-mingled the security deposit. He had taken the security deposit 2 or 3 years before the case even happened and had put that in his bank account and co-mingled it with his money.
Technically speaking, this deposit was supposed to be kept segregated from the landlord’s money so that in the event of a claim, the landlord could then send the claim to the tenant post-vacate and they could say the tenant had damaged the light or the carpet was stained, so since the landlord had the $1,200 security deposit, they would charge $700 against it. They could tell the tenant they had 10 days to dispute it and if not, they could send the tenant the balance of the security deposit to whatever address they had in their record, which is how it should be done.
A lot of landlords put this money in their account and think that two years later the tenant vacated, they would just give them back their money. This is an absolute defense to an action for them, just because the landlord co-mingled the money. If the landlord terminated the tenancy and did not un-co-mingle the money, for example they terminated the tenancy effective from 1 November but they had co-mingled the money, then when 1 November came by and they brought an action, they would not be able to cure it. They would not be able to take the money and un-co-mingle it.
In essence, the tenant would have an absolute right to have that money back even if he totally damaged the place. There would be the $1,000 security deposit, and it would be $10,000 with the damage, but in theory, he would have the right to get his $1,000 back and not have to pay the landlord anything. The landlord would not be able to keep the security deposit against the damage.
Before 1 November, the landlord would be able to take the $1,000 and put it into a segregated account and they would probably be able to get away with it, but once the landlord terminated the tenancy, he would not be able to cure a co-mingled issue.
Can A Tenant Stay On Indefinitely Without Paying Rent?
In Nassau and Suffolk, people hear horror stories in the city about tenants who stayed for months or even a year over without paying anything, but it does not work that way out here. The tenant may be able to get two months grace but they would not get the tenant treatment in Nassau and Suffolk that they would get in New York City.
Will The Landlord Be Able To Recover All Of The Rent?
Landlords think they will get all their money, but most tenants are living on the margins of society. They are not bad people but they are just economically struggling and the chances for the landlord to be able to collect on a judgment are generally slim to none. I always tell them the money they were owed would be something that could be used as a bargaining tool and it could be used in any kind of settlement negotiation.
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