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Landlord not refunding overpaid rent after I vacated before the end of the month -- should I go to court?

Brooklyn, NY |

Our original lease suggests that rent is due for entire calendar months. Our lease extension reads: "This renewal lease is based on the same terms and conditions as your expiring lease, except that termination of the lease with 60 days notice by tenant is agreed."

- On 11/29 I wrote: "I would like to request that we end our lease on January 22, 2013 and therefore pay a pro-rated rent for the month of January."
- On 12/4 he replied: "Hi we received and accepted your email good lock [sic]"
- On 12/8 I wrote: "I believe the prorated rent for Jan 1 - Jan 22 should be $2402 for 22 of 31 days." to which he did not reply
- On 1/22 he returned the security deposit but not the overpaid rent (we had paid a full last month in advance), claims he didn't read my emails carefully, and refuses to do so

The full text of my notice given on 11/29 was: I am writing to inform you that we wish to terminate our lease for [address deleted] as per our agreement made with the lease renewal in May. We plan to move on or after January 15 (this is to move to a different school zone), and I would like to request that we end our lease on January 22, 2013 and therefore pay a pro-rated rent for the month of January. I recognize that this is 55 days' notice rather than the 60 days we agreed -- however I hope this will be acceptable as this will give you sufficient time to replace and refinish the flooring that was damaged due to water leakage in 2011. Please confirm that this is acceptable. On 12/8 I had written: I believe the prorated rent for Jan 1 - Jan 22 should be $2402 for 22 of 31 days. We paid you $3300 for the last month's rent when we signed the lease, so I expect you will refund the $898 excess to us along with the $3385 (plus any interest payable) security deposit.

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Attorney answers 4

Posted

Take the issue to small claims Court.

Call for a free consultation at 727-937-1400 or visit us on the Web at www.serviceandjustice.com.

Posted

This is certainly a matter you could pursue in court given the recorded documentation you have for your correspondences with the landlord. The decision to hire an attorney will be based on what you would like to spend on an attorney vs the amount you are looking to recover. Feel free to contact our offices should you require further consultation.

Asker

Posted

Thanks for your helpful reply. Are there any risks to filing a small claim (other than my time and the filing fee)? Could the landlord countersue for something?

Mark Daniel Hannan

Mark Daniel Hannan

Posted

There is not a risk outside of provoking a landlord that may have a valid counterclaim he may have let be. To sufficiently answer this question more, and perhaps confidential, details would need to be shared.

Posted

Dear and landlord refuses to prorate the rent?

That may be due to the practice in New York that does not favor pro-rating rent, as in New York, a month to month tenancy ends on the last day of the rental month.

In New York, whether the tenant lived in the apartment for one day after the start of a rental month, all the rent for the entire month is due in full on that day. So when you paid the rent in full on for the last month, the entire rent amount was due on that day, regardless of when you actually moved out. Until you vacated the apartment the apartment could not be rented. The earliest to expect the landlord to rent an apartment when the move out occurred mid-month would be the first day of next month.

Now there may be ambiguity in your lease with the landlord relating to the advance notice of sixty days to end the tenancy, and the general rule is that if there is an ambiguity the ambiguity is decided against the party that drafted the agreement.

In order to test if you are entitled to a part refund for the rent paid for the last month, since your landlord no longer seems to agree that he consented to pro-rate the rent, you would need to sue the former landlord in Small Claims Court.

Read about the Small Claims Court process here:

http://www.courts.state.ny.us/courts/nyc/smallclaims/general.shtml

Good luck.

The answer provided to you is in the nature of general information. The general proposition being that you should try to avoid a bad outcome if you can.

Asker

Posted

Thanks for your helpful reply. I had assumed that my landlord's (albeit terse) acceptance of my request to terminate on 1/22 and pay pro-rated rent was because it was to his benefit as well. The flooring in the master bedroom had been temporarily patched many months earlier following some severe warping because of a water leak, and this needed to be redone and the floor refinished -- at least a 3 day process. Because of this, had we vacated on the 31st, the next tenant would not have been able to occupy for a few days after the first, so the landlord would have lost rent then (and possibly not found a tenant able to wait). Instead, I believed they would be refunding the overpayment, and it was not until I had handed over keys that I realized they weren't. They claim it was because of not reading the emails carefully (which I believe as English isn't their strong suit and they have been a bit incompetent the whole way through), but the net effect is that I moved out early to allow them to do the work they needed to do without losing a penny of rent. Had I known they were going to keep the whole month's rent, I would have stayed put until the 31st, or at least kept the keys and denied them access to redo the flooring. I'm not in the business of subsidizing multi-unit building owners.

Steven Warren Smollens

Steven Warren Smollens

Posted

OK. I realize also that you did not provide the full sixty day notice but in this context it does not really matter. If you had made the full notice, and had paid the rent for the last month, the landlord could have expected that you would move out at the end of your term, or on January 31, 2013. But you did not even provide the sixty notice required by the lease. The law does not impose on the outgoing tenant the burden to provide the landlord with time to find a new tenant as long as the departing tenant provided proper notice and paid the rent through the last day of the term. It is eight days that are in dispute and if you think it worth your while to pursue the claim that is entirely up to you. Good luck.

Posted

I think you missed the point. He was saying good luck on your move. From your emails it does not seem he agreed to a pro-rated rate. I doubt small claims court would require that the LL pro-rate the rent. You can request a LL to end your lease on the 22, however a month to month lease goes from the 1st to the last day of the month. If you leave early that is for your account. The 60 day notice is assumed from the first of the month in a month to month lease. In my leases I clarify that point as tenant's have tried the same thing. Sorry, I don't think it will fly.

Asker

Posted

Thanks for your time and opinion. But if I ask in writing "can I end a week earlier and pay less rent" and the landlord replies "yes, that is fine", wouldn't they be bound to then charge less rent? Clearly, there may have been a misunderstanding, but isn't that effectively what was exchanged? - On 11/29 I wrote: "I would like to request that we end our lease on January 22, 2013 and therefore pay a pro-rated rent for the month of January." - On 12/4 he replied: "Hi we received and accepted your email good lock [sic]" They certainly could have replied, "You can move out on 1/22, but still have to pay for the entire month", in which case I would have stayed until the end (or at least kept the keys), and they would have had to fix the flooring beginning 2/1 and not rented out the apartment until 2/5 or 2/16 or 3/1. A cynic could speculate that they played this intentionally so I would move out on 1/22, allowing them to win by getting all my rent AND 9 days to fix the warped flooring, losing not a penny at my expense. I feel cheated, particularly since I would have made different choices if I hadn't been misled. I'm not trying to weasel by on subtle language -- I asked a question thought I got one answer, but instead was told (paraphrasing) "I didn't really read your notice of termination very well". Why else write "we received and accepted your email" -- there is nothing to accept if I am simply telling them on 11/29 that I'm going to move out before 3/1 and not pay rent from 3/1 onward.

Sandra A Joseph

Sandra A Joseph

Posted

Watch Judge Judy. This issue comes up all the time. Her anologize is if you go to the restuarant and order a meal but leave 1/4 you still have to pay for the entire meal. Good Luck in small claims but I doubt you will recover.

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