I started looking at apt since Nov 2009, finally find this apartment I wanted and completed board package on 3/8 which include signed lease. Was interviewed last Wed with no issues, told by Board president I can move in on Friday. Friday afternoon got the call from my realtor mentioning complications - The coop is requiring the mortgage bank either to approve the sublease in writing, or... [more]
I started looking at apt since Nov 2009, finally find this apartment I wanted and completed board package on 3/8 which include signed lease. Was interviewed last Wed with no issues, told by Board president I can move in on Friday. Friday afternoon got the call from my realtor mentioning complications - The coop is requiring the mortgage bank either to approve the sublease in writing, or alternatively for the owner to put 12 months of maintenance in escrow. The owner is unable to obtain the former and is refusing to do the latter. To help with the situation, I’ve offered to pay the year’s worth of rent up front but the owner has refused that as well and said the deal is off. I was expected to move on Tuesday (in 2 days) with everything pack and nowhere to go, as well as sustain financial losses (app fee, credit check, opportunity cost on apartments as rents gonna get higher etc., personal moving arrangement, etc. ).
I have logged 10 hours of apartment hunting this weekend trying find something new but rather this can change. I have seen way too many apartments to look further more.
Here are the 2 statements re approval/contract legality. I am questioning whether the owner performs #2 according to the contract.
"If the Landlord's consent to the Sublease is required, this consent must be received within days. from the date of this Sublease If the Landlord's consent is not received within this time, the Sublease will be void. In such event all parties are automatically released and all payment refunded to you the undertenant."
"The subtenant and overtenent/owner agree to do everything necessary, in a timely manner, to fulfill the board's requirements for obtaining approval of this sublease."
My realtor recommends to move on. As interestingly enough, the unit is back on the market today as sale, which the owner wanted to do previously as well. But it is also listed as in contract in combination with the unit below to be sold as a combined unit, which the owner also owns. I know the contract for the unit below is for sure in contract. Something is not quite right here.
Any recommended actions?
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Response by kylewest
almost 16 years ago
Posts: 4455
Member since: Aug 2007
What this boils down to is you want specific performance on the contract--that is, that the lease be honored and you can move in. Ain't gonna happen. Surely you aren't going to realistically pursue enforcing this in court due to the time, expense and limited benefit months or more down the road. If you are, you'll have to live somewhere while that process takes place and by then would you really want to move again if you were somehow to "win"? There is no way for this to play out in your favor if the coop and owner don't want it to IMO.
I can't see how you would ever win the "opportunity cost on apartments as rents going higher" since we aren't talking about a process that did not go on long enough for rents to substantively change or for you to be meaningfully damaged by detrimentally relying on the seller's promises, and if you aren't moving your moving costs are likely limited to loss of a deposit. I guess you can sue in small claims court (although I'm not certain because I don't know if the fact that RE or landlord/tenant is involved changes the court you have to bring the action in).
FWIW, you may write a letter asking the owner to return your application fee, cost of credit check, loss of moving deposit if any with the moving company and explaining that if s/he fails to do so within 72 hours you will file a claim against them and the coop within the week. This would possibly be a headache the owner doesn't want if s/he is attempting to sell and wants all to go easy with the board. And if the owner refuses, then by all means file the action--you don't need a lawyer in small claims court and all it takes is your willingness to devote the time to showing up and waiting in lines, etc. a few times.
These are my thoughts as I read your post--not legal advice. For legal advice you need to consult an attorney.
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Response by inonada
almost 16 years ago
Posts: 7952
Member since: Oct 2008
I fully agree with kylewest on this. You won't be living there, so move on and find something else.
On filing a claim, I think you've got something, at least enough to cause trouble. It's too small to interest an attorney, IMO, so your best bet is probably small claims court or housing court. You could file for damages in the maximum $5K, and throw in as many reasons as possible to make the total claimed damages be much higher than $5K in case whatever is thrown out.
However, what you really want to do is to sue for enforcement of the lease, I would think. Read up on what you can do on nycourts.gov, as you might be able to do that without a lawyer as well. If in fact you're right about the owner trying to squirm out of the lease to sell, then your goal here is to create as much trouble as possible for the owner and coop until you're paid damages. Your best bet on doing this is to create trouble for the sale. You would need to file it ASAP, I would imagine. Make sure you have subpoenas served to everyone: the agent, the coop president, the buyer of the apartment, the buyer's agent, etc. I.e., make a big stink, make sure the coop board is dragged into it, etc. While certain people might be inclined to fabricate the truth outside of court, they will be less inclined in court. Certain people (e.g., the coop president) will have little incentive to fabricate anything inside the court, and will actually know all the dealings regarding the sale. Possibly ditto for the buyer & buyer's attorney, and if they get wind of this, they'll be spooked.
Again, the goal here is to hold up the sale to be paid damages. If you get a judgement to have the lease enforced, then the sale will be off since the new owner has no interest in buying two apartments where one is occupied by you. The owner will not want to risk such a thing, so he/she will do what it takes to avoid court over this. I do not believe your damages here are limited to an application fee, credit check, etc. You were contractually entitled to leasing that apartment for the next year or two, and damages related to non-performance on that are not simply some costs associated with the due diligence on the lease.
To copy kylewest's sentence for myself.... These are my thoughts as I read your post--not legal advice. For legal advice you need to consult an attorney.
What this boils down to is you want specific performance on the contract--that is, that the lease be honored and you can move in. Ain't gonna happen. Surely you aren't going to realistically pursue enforcing this in court due to the time, expense and limited benefit months or more down the road. If you are, you'll have to live somewhere while that process takes place and by then would you really want to move again if you were somehow to "win"? There is no way for this to play out in your favor if the coop and owner don't want it to IMO.
I can't see how you would ever win the "opportunity cost on apartments as rents going higher" since we aren't talking about a process that did not go on long enough for rents to substantively change or for you to be meaningfully damaged by detrimentally relying on the seller's promises, and if you aren't moving your moving costs are likely limited to loss of a deposit. I guess you can sue in small claims court (although I'm not certain because I don't know if the fact that RE or landlord/tenant is involved changes the court you have to bring the action in).
FWIW, you may write a letter asking the owner to return your application fee, cost of credit check, loss of moving deposit if any with the moving company and explaining that if s/he fails to do so within 72 hours you will file a claim against them and the coop within the week. This would possibly be a headache the owner doesn't want if s/he is attempting to sell and wants all to go easy with the board. And if the owner refuses, then by all means file the action--you don't need a lawyer in small claims court and all it takes is your willingness to devote the time to showing up and waiting in lines, etc. a few times.
These are my thoughts as I read your post--not legal advice. For legal advice you need to consult an attorney.
I fully agree with kylewest on this. You won't be living there, so move on and find something else.
On filing a claim, I think you've got something, at least enough to cause trouble. It's too small to interest an attorney, IMO, so your best bet is probably small claims court or housing court. You could file for damages in the maximum $5K, and throw in as many reasons as possible to make the total claimed damages be much higher than $5K in case whatever is thrown out.
However, what you really want to do is to sue for enforcement of the lease, I would think. Read up on what you can do on nycourts.gov, as you might be able to do that without a lawyer as well. If in fact you're right about the owner trying to squirm out of the lease to sell, then your goal here is to create as much trouble as possible for the owner and coop until you're paid damages. Your best bet on doing this is to create trouble for the sale. You would need to file it ASAP, I would imagine. Make sure you have subpoenas served to everyone: the agent, the coop president, the buyer of the apartment, the buyer's agent, etc. I.e., make a big stink, make sure the coop board is dragged into it, etc. While certain people might be inclined to fabricate the truth outside of court, they will be less inclined in court. Certain people (e.g., the coop president) will have little incentive to fabricate anything inside the court, and will actually know all the dealings regarding the sale. Possibly ditto for the buyer & buyer's attorney, and if they get wind of this, they'll be spooked.
Again, the goal here is to hold up the sale to be paid damages. If you get a judgement to have the lease enforced, then the sale will be off since the new owner has no interest in buying two apartments where one is occupied by you. The owner will not want to risk such a thing, so he/she will do what it takes to avoid court over this. I do not believe your damages here are limited to an application fee, credit check, etc. You were contractually entitled to leasing that apartment for the next year or two, and damages related to non-performance on that are not simply some costs associated with the due diligence on the lease.
To copy kylewest's sentence for myself.... These are my thoughts as I read your post--not legal advice. For legal advice you need to consult an attorney.