My tenant wants to put a clause in the lease saying she can move out early. Should I let her?

By Virginia K. Smith | March 16, 2015 - 3:15PM

Q. I'm about to renew a lease with my tenant, and she's asked me to add an early termination clause. Is this standard in New York, and is there a typical notice period? What kind of legal language should I include?

A: While you won't see this type of clause in standard leases, it's not unheard of in New York, and it's possible to give your tenant what she wants while protecting yourself as a landlord, our experts say. "A termination clause isn't typical, but the more savvy tenants ask for it," says real estate attorney Dean Roberts of Norris, McLaughlin & Marcus. This is in large part because landlords have no "duty to mitigate" in New York, meaning that if a tenant on a standard lease asks to move out, you as the landlord have no obligation to try to find a replacement (or even accept any replacements the tenant finds on their own).

If you do agree to the termination clause, you'll want to word it carefully. "Most landlords don't like to give early termination provisions unless they allow plenty of time to find a new tenant—usually 90 days notice, 60 days at the minimum," says Roberts. If your tenant ignores this and leaves without the right amount of notice, they'll be considered in breach of the lease, and responsible for the rent just as they would be if there had been no termination clause to begin with. All of which is to say you'd be well within your rights to sue (or threaten to sue so they move back in and continue paying rent until giving appropriate notice).

You'll also want the clause to specify how the tenant gives you notice—i.e. they deliver it written and to a specific person at a specific location and address—as well as when. "You can't give a 30-day notice on the 20th of the month," says Roberts, who suggests a requirement that notice comes in within the first five days of a given month so you have as much time as possible to find a suitable replacement.

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