Eliminate Risk of Abandoning Tenant Claiming Illegal Eviction

Q One of my rent-stabilized tenants has been illegally subletting his apartment to someone for about five months. The tenant informed the subtenant that he was moving back to live in Algeria. When I found out about the situation, I gave the subtenant time to find another place. The subtenant has since moved out.

However, the tenant still has about seven or eight months left on his lease, and I don't want to wait that long to rent the apartment to someone else. I've tried to get in touch with the tenant, but he has not returned any of my letters. The letters were sent to an address in Algeria that he had left with the subtenant. Is there any way to rent out the apartment without going to court?

A Most likely, no. The easiest solution to avoid going to court is to have the tenant execute a written surrender of the apartment, says attorney Peter Schwartz of Graubard Miller. With a written surrender agreement in hand, as long as the illegal subtenant vacates, there would be no need to proceed in court. For an example of a surrender agreement, see our Model Agreement: Get Signature When Tenant Abandons or Volunteers to Leave Apartment.

Unfortunately, it seems as though you are unable to have the tenant return a written surrender agreement. The only options left, if you want to rent the apartment before the lease is up and without a written surrender agreement, is to obtain a court order through an abandonment proceeding or a nonpayment proceeding. “In the absence of a written surrender by the tenant or a court order, the owner runs the risk that the tenant will return to the apartment and claim illegal eviction,” says Schwartz.