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New York - Apartment complex refuses to prorate last month's rent

Watertown, NY |

The apartment complex wasn't open on Monday so that we couldn't put in our 30 day notice. I'm not in the area and my husband works the hours that the office is open so he wasn't able to go in until today to put in his thirty day notice even though he doesn't plan to move out until May 13th. The apartment stated that because that's 13 days past the termination of the lease they have automatically enrolled us in a month-to-month lease (we knew that this would happen as it stated that in the lease contract that we signed a year ago) but then they said that because he's not moving out the last day of the month they're going to still charge us for the entire month. We are on military orders to go to the next base so is there anyway to get the rent prorated???

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Attorney answers 2


Dear Military Family:

New York does not provide a statute that mandates that a landlord pro rate rent.

You may inquire from the JAG at the current base if there is a federal law that overrides your lease and the law of month to month tenancies in New York.

The big problem is that you are not moving out until May 13 and in New York, the entire rent for the full month is due to the landlord on the rent due date, without any apportionment.

What is at risk if you do not pay for May? Will the landlord chase you for that one month?

You have to evaluate that on your own.

Thank you for your service and Best of 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.

Steven Warren Smollens

Steven Warren Smollens


OK. New York does not permit for default judgments to be entered against persons in Military Service. That right is devolved from Federal Law. New York also provides (and this still may not fully address your issues) that a person in Military Service may be relieved from certain obligations in relation to rental agreements if a move is caused by reason of military orders (although the language in the statute is obtuse and seems to suggest that this applies if the lease pre-existed entering into the military. So, my suggestion to run this issue by the base JAG (liability for the remainder of May beyond May 13th) "***New York Military - Article 13 - § 311-B Cancellation Without Penalty of Certain Additional Rental Contracts New York Military Article 13 - § 311-B Cancellation Without Penalty of Certain Additional Rental Contracts § 311-b. Cancellation without penalty of certain additional rental contracts. 1. The provision of this section shall apply to any rental contracts in which (a) such a contract was executed by or on the behalf of a person, who, after the execution of such contract, entered active military service, and (b) where such entry into military service now renders it impossible for such person to abide by the terms and conditions of the rental contract. 2. A person who enters into a rental contract for goods or services not otherwise addressed by the provisions of this article, who enters into active military service subsequent to the execution of such contract, and where his or her military activation causes it to be impossible for him or her to abide by the terms and conditions of the rental contract, is entitled to cancel such contract at no penalty and with a full refund of any moneys which may have been placed on deposit. 3. Any such contract may be terminated by notice in writing delivered to the contractor by such person in active military service canceling his or her rental contract within one week of his or her receipt of orders to report for military service, and such notice shall include a copy of the orders in question. Delivery of such notice shall be accomplished by certified mail duly addressed to the contractor.***" Good luck.


Rent is normally not pro-rated unless a tenant becomes a holdover after termination of a lease and the Landlord requests fair value for the tenant's use and occupancy after termination.



We had a year lease and were automatically enrolled in the month-to-month following. They are requesting fair value but refuse to pro-rate so we can leave on military orders on the 13th.