Opinion
SC-000746-12/CA
01-15-2013
Laura Rawlins, Plaintiff, v. Melissa Dewall, Defendant.
Plaintiff: pro se Defendant: pro se
Plaintiff: pro se
Defendant: pro se
Stephen D. Aronson, J.
Where a tenant abandons a residential property before the expiration of the term, does the tenant remain liable for rent for the duration of the term? Under circumstances where there is a surrender by operation of law, the lease is deemed terminated, and, absent a provision in the lease to the contrary, the tenant has no liability for future rent.
In this small claims case, the plaintiff (hereinafter "landlord") seeks $2,916.88 from the defendant (hereinafter "tenant"). A hearing was held on January 3, 2013. Both parties reside in Monroe County; however, Canandaigua City Court has small claims jurisdiction because the tenant has regular employment within Ontario County (Uniform City Court Act § 1801). The undisputed relevant evidence showed that the landlord owns a single-family residence at 106 West Spruce Street in East Rochester, New York (hereinafter "property") and that the landlord entered into a written lease with the tenant and the tenant's boyfriend, who now resides in Georgia and is not subject to the jurisdiction of small claims courts in New York. The written lease commenced August 1, 2012, and was to expire on June 30, 2013. The tenant's boyfriend and co-tenant abandoned the property on or about October 22, 2012, without notice to the landlord. The tenant abandoned the property on or about October 30, 2012, by leaving her key in the landlord's mailbox and leaving a note explaining, in words or substance, that she and her boyfriend were not getting along. The landlord immediately entered into possession of the property and listed it for rent on Craigslist on November 5, 2012. The landlord leased the property to a new tenant starting January 1, 2013.
The landlord contends that the tenant should be responsible for November rent of $850, December rent of $850, the security deposit of $850, the $150 difference between rent the tenant would have paid through June 2013 ($850 per month) and the rent the new tenant is obligated to pay through June 2013 ($825 per month), $53.91 for a new lockset, $42.97 for the water bill, and $100 for cleaning the apartment. The tenant acknowledges responsibility for the water bill but nothing else.
In every small claims case, the court is bound to perform substantial justice to the parties in accordance with principles of substantive law (Uniform City Court Act § 1804). Under well-settled principles of landlord and tenant law, when a tenant vacates a leased property prior to the expiration of a written lease the landlord can (1) do nothing and continue to collect rent due under the lease; (2) explicitly or implicitly accept surrender, thereby relieving the tenant of further liability for rent; or (3) relet the premises pursuant to a lease provision and look to the original tenant for any deficiency (Altamuro v. Capoccetta, 212 AD2d 904 [3d Dept 1995]). A surrender by operation of law occurs when the parties to a lease both do some act so inconsistent with the landlord and tenant relationship that it indicates their intent to deem the lease terminated (Riverside Research Institute v. KMGA, Inc., 68 NY2d 689 [1986]). A surrender by operation of law is a determination that must be made on the facts and that is inferred from the conduct of the parties (Id.; Wofford v. Adams, 299 AD2d 249 [1st Dept 2002] [landlord accepted tenant's abandonment, changed locks, prepared apartment for new occupant and found suitable new tenant]; Brock Enterprises, Ltd v. Dunham's Bay Boat Co., Inc., 292 AD2d 681 [3d Dept 2002] [abandonment by tenant, and landlord relet property for landlord's benefit]).
In this case, the credible evidence shows that the landlord retained the key surrendered by the tenant, changed the locks (admittedly, the locks needed to be changed because the co-tenant did not leave his keys), almost immediately advertised the property for rent on Craigslist, prepared the property for a new occupant, and then leased the property to a new tenant. Under the circumstances, there was a surrender by operation of law, and the lease is deemed to have terminated (Riverside Research Institute v. KMGA, Inc., id.; Wofford v. Adams, id.). Moreover, there was no specific provision in the parties' lease that made the tenant responsible for any rent deficiency if the landlord relet the property after a surrender. Therefore, the tenant is not responsible for rent for November and December 2012, nor is the tenant responsible for the $150 difference between the rental due under the tenant's lease at $850 per month and the rental due under the new tenant's lease at $825 per month (Altamuro v. Capoccetta, id.).
The landlord also seeks $53.91 for changing the lockset. The credible evidence showed that the change was necessary because the co-tenant abandoned the property without surrendering his keys. Under the circumstances, the tenant and her co-tenant are jointly and severally liable for the cost of replacing the lockset. The landlord is entitled to a judgment against the tenant for $53.91. The tenant has a viable claim against her co-tenant for this sum; however, under the law, both tenants are equally responsible to the landlord for the whole amount.
The landlord seeks $100 from the tenant for cleaning the carpet, stove and dishes. She relies upon the lease provision (paragraph 13) requiring tenants to have the rugs professionally shampooed before vacating the property. The tenant contends that she rented a shampooer and cleaned the rugs. The landlord seeks $50 for labor to clean the rugs and $50 for labor to clean the stove and dishes. Under the circumstances, where neither party had the rugs "professionally shampooed," and giving due regard to the credibility of the parties, substantial justice would be performed by directing the tenant to pay the landlord the sum of $50.
Finally, the landlord seeks an award of $850 for the security deposit. There is no authority for making this award. Since the lease was terminated as a result of a surrender by operation of law, the lease was terminated. The lease clearly states that the security deposit shall be returned to the tenants if they comply with the lease conditions and in case of default "the deposit shall first be applied to repairing damage done to the premises and next to rent arrearages." There was no evidence of damage to the premises, and there was no rent arrearage due to the termination of the lease.
In summary the landlord is entitled to recover the following sums from the tenant: $42.97 for the water bill, $53.91 for changing the lockset, and $50 for cleaning. The tenant did not file a counterclaim for the security deposit, so this award is without prejudice to the tenant pursuing a small claim against the landlord in a court of competent jurisdiction, seeking the return of the security deposit.
Judgment for the plaintiff for $144.88 plus the $20 filing fee.
ENTERED: Canandaigua, New York
DATED: January 15, 2013
Stephen D. Aronson
Hon. Stephen D. Aronson
City Court Judge
"An appeal from this judgment must be taken no later than the earliest of the following dates: (i) 30 days after receipt in court of a copy of this judgment by the appealing party, (ii) 30 days after personal delivery of a copy of the judgment by another party to the action to the appealing party (or by the appealing party to another party), or (iii) 35 days after the mailing of a copy of the judgment to the appealing party by the clerk of the court or by another party to the action."
Exhibits will be held for 30 days, at which time they will be destroyed if not picked up.