Sublet. My tenant/roomate was just arrested. Does this count as bailing on the lease

Asked over 1 year ago - Highland, NY

Tenant was consistently back due, made arrangements to pay. Was arrested and currently incarcerated. Same day off arrest he sent family to claim property, Lease runs through July. This is a Sublet of a room in a house, Written agreement with receipts issued. There is damage to room and furniture.Tenant was given cell phone to use and payment for this was outlined in contract. The cell phone was to be returned as of march 25th at tenants request. There is a small window of time for phone to be returned or face termination fee. This arrangement is in writing as well. Phone presumed in tenant's possession at time of arrest. Seeking back due plus remainder of lease if applicable, money for damages to room and furniture as well as return of phone or termination fee.

Attorney answers (3)

  1. Richard J. Chertock


    Contributor Level 18


    Lawyer agrees

    Answered . Being incarcerated has nothing to do with the obligations under the written sublease agreement. The agreement is still enforcable however it may prove difficult to collect on. If you are not paid the rent you can commence an eviction proceeding in accordance with the applicable rules of court. If you do not get return of the cell phone and incur expenses as a result you can sue in small claims court.

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  2. Steven Warren Smollens

    Contributor Level 20

    Answered . Dear landlord:

    Unless the written lease provided that incarceration even if temporary constitutes a default of an obligation of tenancy, that may not be cured by the tenant, and thus would lead to a direct forfeiture of the lease and tenancy, allowing the service of a termination of tenancy notice and commencement of a summary holdover proceeding, the lease continues in full force and effect, even if the tenant is in county, and even if the tenant is not paying rent.

    So to learn whether your lease provides for the earlier termination, review the terms of the lease and if in doubt, see an attorney.

    More swift and certain is the right to sue for rent nonpayment, but the incarceration may require additional (that is beyond the statute) acts of service for the written rent demand, and then, if the rent is not paid, service of the notice of petition and petition. Note, a family member or the tenant may pay the rent due, even after you start the nonpayment proceeding, and paying the rent due may end your right to seek an eviction for nonpayment.

    You cannot sue for damages for breach of lease until the lease runs out (end of July) but you could sue for your other separate damages when the damages arise (or to save yourself the expense of multiple cases and index numbers) or when all claims are ripe.

    You cannot dip into the security account until the lease is over.

    Because the lease continues until the relationship of landlord and tenant is annulled by reason of the court issuing a warrant of eviction, you may consider with your attorney to salvage a chance of being paid rent for this room by a new tenant, and proceed to elect to terminate the tenancy and gain possession by a summary holdover proceeding.

    Good luck.

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  3. George Costas Andriotis

    Contributor Level 20

    Answered . He is still liable even though he is incarcerated though it will prove very difficult to collect.

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

Related Topics

Landlord-tenant law

Landlord-tenant law is governed mostly by state laws, and covers issues like security deposit limits and deadlines, evictions, and the right to withhold rent.

Lease agreements for renting

A lease agreement is a contract that gives the tenant the right to live in a property, usually for a specific period of time and with certain limitations.

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