Q: I sublet a market-rate rental apartment in Brooklyn on a month-to-month basis. There is nothing in my sublet agreement with the prime tenant that states how much notice I have to give before I move out. A previous subletter moved out with only a few days’ notice, and the prime tenant withheld their security deposit, claiming it had to be used for the uncovered next months’ rent. Are they legally able to do that? Am I bound by some law requiring that I give more notice if we haven’t agreed upon it?
A: Technically, the law does not require that you give the prime tenant, who is also your landlord, a certain amount of notice before you move out. But there is some nuance here.
“If a judge thought it was unfair or inequitable — that there was lack of notice, even if it wasn’t legally required — it could bear on the decision,” said David A. Kaminsky, a real estate lawyer in Manhattan.
Mr. Kaminsky said he does not agree with those decisions, but sometimes they do happen. Giving notice of a full calendar month is both courteous and a way to protect your security deposit. “If you wound up in small claims court, it would be helpful to be able to say you have given the landlord sufficient notice as you were able to provide,” he said.
Cory L. Weiss, chair of the landlord and tenant practice at Tarter Krinsky & Drogin LLP, agreed that if your deposit were not returned, and you attempted to recover it by suing your landlord, a judge would consider the facts of the case, including your actions.
“The court often rules based on what it believes to be fair and equitable, notwithstanding the black letter law,” Mr. Weiss said.
The law states that within 14 days of your departure, your landlord must return the security deposit to you, or give a detailed accounting of how they used it to pay for damages other than reasonable wear and tear.
If you feel you’ve acted in good faith and the landlord tries to keep any portion of your deposit by claiming that you were late in giving notice, then you should consider legal action, said Mr. Kaminsky.
“I suggest taking the prime tenant to court to recover double the amount of deposit wrongfully withheld,” he said.
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