Ask Sam: I’m breaking my lease, and the landlord listed the apartment for a higher rent. Does this protect me from being sued?

With a lease break, the law requires landlords make a good faith effort to rent out the apartment
Landlords who seek higher-paying renters violate the mitigation statute in the 2019 rent reforms

By Himmelstein McConnell Gribben & Joseph LLP | October 25, 2023 - 12:30PM

I’m relocating for a new job and have to break my lease. The landlord listed the apartment at a higher rent ($200 more than what I pay) plus broker fee. Does this mean that they are violating the duty to mitigate damages statute and cannot sue me or request that I pay the remainder of my lease?

If your landlord is already marketing the apartment at a higher rent, then you will be able to defeat any lawsuit the landlord may bring for breaking the lease, says Sam Himmelstein, an attorney at Himmelstein, McConnell, Gribben & Joseph who represents residential and commercial tenants and tenant associations.

When a tenant breaks their lease, the law requires that landlords make a good faith effort to rent out the apartment “at fair market value or at the rate agreed to during the term of the tenancy, whichever is lower.”

Once the apartment is rented to a new tenant at fair market value or the rent the first tenant was paying, the new lease terminates the previous one, and mitigates the damages of the first tenant’s lease break.

Since your landlord has listed the unit at a higher rate, they have already violated this law.

“Once the landlord markets the apartment for even a dollar above what the previous tenant was paying, they’ve violated the mitigation statute,” Himmelstein says.

This statute is relatively new, part of the sweeping rent reforms instituted under the Housing Stability and Tenant Protection Act passed in 2019.

For your situation, there isn’t much legal precedent, but the fact that your landlord is trying to rent out the apartment at a higher rate than stipulated by law should enable you to successfully defend yourself against any suit the landlord may file. The burden of proof in housing court is on the party seeking damages—that is, the landlord, Himmelstein notes, and you can demonstrate that your landlord has listed the unit for $200 more than your rent.

“The case law hasn’t developed on this yet, but my view is if a tenant leaves early and the landlord sues for breach of lease, the tenant can move to dismiss the case without going to trial because there is documentary evidence that the landlord violated the law,” Himmelstein says.

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Sam Himmelstein, Esq. represents NYC tenants and tenant associations in disputes over evictions, rent increases, rental conversions, rent stabilization law, lease buyouts, and many other issues. He is a partner at Himmelstein, McConnell, Gribben & Joseph in Manhattan. To submit a question for this column, click here. To ask about a legal consultation, email Sam or call (212) 349-3000.

Alanna Schubach

Contributing writer

Contributing editor Alanna Schubach has over a decade of experience as a New York City-based freelance journalist.

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