Moving During the Pandemic
April 18, 2020 10:33 PM   Subscribe

As the title says, I am moving during the pandemic. I know, terrible timing. My basic question is this... I signed a lease for an apartment without being able to even look at the property because we are under a no travel order. Now, 10 days before I'm supposed to move in, my leasing agent called me to inform me the unit I rented is not going to be available. What rights do I have as a tenant? (ik you are not my lawyer, just wondering if anyone has lived through this)

I live in New York State. I'm moving from Buffalo to Long Island for a job I applied for before the virus existed. I was offered the job at the beginning of March, so I didn't have time to go apartment hunting before everything shut down. I found a seemingly decent looking apartment complex that had an available unit at the end of April, 2 weeks after I was supposed to start working. I did something I wouldn't normally do, and signed a lease for this apartment without going to see the property in person because I did not know how else I would find a place to live when I needed it. I'm currently staying in an airbnb for 2 weeks until my apartment is ready. (I didn't find out until after I already paid for the airbnb that I'd be working from home, not in the office)

The complex consists of multiple 2 story units. My lease is for an upper unit. I had to set up the electricity before I could sign the lease. I just set up the internet so it will be ready to go for working from home when I move in. Everything seemed ready to go. Then I get a call today from the leasing agent saying the people in my unit are not moving out. She says there's a lower unit available right now that I can have instead. I told her I'd check it out and get back to her.

The unit that is available is right on a walking path from the parking lot to the main street in the unit, so people will be walking right past my bedroom window all the time. As a single woman living in a place I'm not familiar with, I'm not comfortable living on the first floor. There aren't even a couple steps up into the build, it is completely ground level. The next upper unit they have available is available June 12. I thought maybe I could just work at home in the house I still own in Buffalo until June 12, but I would need to check with my new job to see when they think we might be going back to work. Unfortunately, the leasing agent said she could not hold both units for me until I can speak to my boss on Monday. The upper unit might be rented by then.

I want out of this lease because the unit I rented is not available, and the lower unit is not a viable alternative. Unfortunately, the lease has a provision that if a previous tenant fails to relinquish occupancy, that is not grounds for rescinding the lease. The new tenant will begin to pay rent when the unit becomes available. This, I assume, is the specific provision mentioned in NYS law 223-A. Remedies of Lessee When Possession Is Not Delivered. In the absence of an express provision to the contrary, there shall be implied in every lease of real property a condition that the lessor will deliver possession at the beginning of the term.

Are landlords really allowed to include such a provision?
They are allowed to force me to live in an apartment I didn't agree to?

I intend on asking to get out of the lease because I have actually found an alternative place to live. I just want to know if it will even be worth getting a lawyer to fight this given the specific lease provision.

Thank you for reading my long-winded question. I'm very distressed by the whole pandemic, and moving during it is making it even worse.
posted by DEiBnL13 to Law & Government (10 answers total) 1 user marked this as a favorite
Talk to your local Tennant's rights provider in the district you rented ASAP. Many are doing phone consultations. I bet they have tons of issues renting out that first floor unit exactly for the issues you described and this is their way of renting out that unit period. The pressure is rediculous, if they can change the made terms so easily, why don't they tell the next person to get that first floor unit?

They will let you know your exact next steps, what communication with the landlord you need and if the lease provision is even legal. They will also let you know how to get back a first months deposit ect if possible .
posted by AlexiaSky at 10:47 PM on April 18, 2020 [3 favorites]

You signed a lease for that particular unit. The landlord cannot force you to take possession of another unit in its place. So if it is unable to deliver you possession of your particular unit at all during the term of your lease, that is a breach of the lease. They would be very unlikely to win a suit against you-- but if they already have a security deposit, etc., odds are that you will have to sue them to get it back.
posted by praemunire at 10:49 PM on April 18, 2020 [2 favorites]

At first look, the law is on your side. If the property manager told you otherwise, they are trying to pull a fast one to cover their screw-up.

New York Real Property Law
Sec. 223-A
Remedies of Lessee When Possession Is Not Delivered
In the absence of an express provision to the contrary, there shall be implied in every lease of real property a condition that the lessor will deliver possession at the beginning of the term. In the event of breach of such implied condition the lessee shall have the right to rescind the lease and to recover the consideration paid. Such right shall not be deemed inconsistent with any right of action he may have to recover damages.

Even if your specific lease says otherwise, those terms can turn out to be illegal or unenforceable. You also have the right to recover damages for costs you incurred by relying on their promise.

Also, your tenancy hasn't started, so you're not a tenant yet. You don't have to pay rent or fulfil any obligations as a tenant. It should be straightforward to back out and go somewhere else.
posted by dum spiro spero at 10:50 PM on April 18, 2020 [1 favorite]

In the absence of an express provision to the contrary

OP is saying that there is an express waiver of this provision in their lease (very common).
posted by praemunire at 10:56 PM on April 18, 2020 [2 favorites]

Any chance OP can post the specific language in their lease?

Here's an interesting article discussing different ways contracts can be written. They usually limit liability but do not force the tenant into a contract when the other side fails to perform.
posted by dum spiro spero at 11:08 PM on April 18, 2020

I find myself saying this an awful lot on real estate questions--landlord-tenant law is very nearly the most jurisdiction-specific we have in the U.S., and a lack of familiarity with the law of the particular state, and even city, renders advice beyond "contact a tenant's rights association" (always valid) not particularly helpful. The blog post you point to assumes two informed parties of equal power negotiating freely, when in fact landlords write the leases and are so confident in their ability to muscle their tenants that they often include even completely unenforceable provisions, to say nothing of clauses that merely give the landlord maximum leverage. (My own lease has such a clause.) But sec. 223-A says right in the text that it is waivable. I'm pretty confident (not speaking as OP's lawyer, of course) that such a waiver means that, e.g., should the landlord offer the apartment two weeks late, that would not be a basis for OP terminating the lease--not that OP can be forced to take a different unit if the leased unit never becomes available. In most contract law, each piece of real estate is treated as unique and not fungible. But OP should definitely take their lease to someone who does tenants' rights for a close read and proper legal advice, not rely on the mere opinions of Internet randos such as me. And this is really not something laymen googling tend to do well at (if it were, lawyers would be out of work).
posted by praemunire at 1:55 AM on April 19, 2020 [4 favorites]

This is the exact language in the lease:

Occupancy: If the building is not ready for occupancy or the previous tenant has failed to leave the apartment, or if for any other reason Landlord is unable to give Tenant possession on the beginning date, this lease shall not be voided or voidable, nor shall the Tenant have any right of rescission, and this lease shall remain in full force and effect. Landlord shall not be liable for any loss or inconvenience. Tenant shall not be liable for rent until such time as the Landlord can deliver possession. When the apartment is available for occupancy Landlord will give three (3) days notice of the new beginning date. The ending date shall not change unless Landlord elects in its notice to extend the lease for a period equal to any portion of the delay.

I never imagined the unit wouldn't be available. You have to let the company know if you're staying or leaving 60 days in advance. It would be one thing if they were delaying leaving, but that's not what the leasing agent told me. Of course, that was a phone conversation, so I don't have that in writing. Oh, and I am in Suffolk County, if that helps. I've tried google for information, but am having trouble finding information on this specific scenario.
posted by DEiBnL13 at 7:35 AM on April 19, 2020

Like praemunire says you need to talk to a tenants rights organization in your area and possibly a lawyer. It's entirely possible that the land lord was acting in good faith but the current pandemic situation has led to the current occupants not leaving. If the building is one that is affected by no eviction laws then it is possible, even likely that the current tenants have decided to tell the landlord to pound sand for the duration with the intent of living rent free or are unable to move to their intended new residence.

It's also possible that the specific waiver in your lease is illegal/unenforceable.

I just want to know if it will even be worth getting a lawyer to fight this given the specific lease provision.

If you are unable to get the land lord to release you from the lease for no/low cost it is certainly worth talking to a lawyer. Many will give a quick initial consult for free that will let you know whether it is worth pursuing legal action to get out of the lease.

I wouldn't take the alternative unit. It is likely to be quite disruptive as people hold conversations late into the night while walking past your bedroom window.

Also if your lease has a penalty free way of terminating early I'd go ahead and get that started.

PS: without a time limit that clause seems completely over the top, I'm flabbergasted it's even nominally legal. The intent is probably to manage the situation where the current tenants over stay for a couple days but in theory if you had a one year lease the land lord could come to you seven months from now and say "Welp, the unit is free. You owe us rent starting in three days." Or even three years from now if the land lord elects to extend the lease. And there is no obligation for the landlord to compensate you in any way.
posted by Mitheral at 8:54 AM on April 19, 2020 [4 favorites]

A tenants right organization, or at least the ones here are really really great about explaining things quickly and putting you on the right path FOR FREE. It really it is seen as a social service. So ask. If they don't know they connect you with someone who will. If you actually need a lawyer many will evaluate if you can get services based on sliding scale and refer you out if you can't. Tenants rights your city(of the rental) or zipcode will give you lots of options to reach out to. Do it. They are friendly people.
posted by AlexiaSky at 10:22 AM on April 19, 2020 [1 favorite]

Absolutely 100% agree with above to approach a tenant’s rights association for advice first and ASAP. You want to get an authoritative source for advice given the nature of that provision, for your own piece of mind if nothing else.

The only things I was going to add were:
1. Make sure you document (or at least save a record of) emails, documents, phone calls, texts etc.

2. If the landlord / leasing agent does try to pressure you, just keep reminding yourself you don’t have to respond until talking to a tenant’s rights group (and even then maybe you don’t need to respond at all). Maybe have a little canned response in your head so if they call you and try and convince you to do something in a hurry / force you to settle for another apartment you don’t want, you can respond politely but firmly. Something like “Thank you for that information - but I’m afraid that simply isn’t possible at this time”. If they threaten you in anyway or imply you are obligated to take any other apartment you can add “Thank you for your perspective - I’m talking with tenant’s rights group XYZ about this situation to get advice and it is simply not possible for me to discuss that matter with you currently.” No commitment, no timelines, no explicit threats, just politely informing them in no uncertain terms that you aren’t an easy mark.

3. Lastly sounds like you have moved on and have a different place lined up - best wishes for that - I hope it turns out even better. And good luck for the new job.
posted by inflatablekiwi at 7:50 PM on April 19, 2020

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