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

Asked over 1 year ago - 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

Additional information

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.

Attorney answers (4)

  1. Mark Daniel Hannan

    Contributor Level 5

    2

    Lawyers agree

    1

    Answered . 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.

  2. Steven Warren Smollens

    Contributor Level 20

    1

    Lawyer agrees

    1

    Answered . 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/smallc...

    Good luck.

    The answer provided to you is in the nature of general information. The general proposition being that you should... more
  3. George Costas Andriotis

    Contributor Level 20

    2

    Lawyers agree

    Answered . 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.
  4. Sandra A Joseph

    Contributor Level 12

    Answered . 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.

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