## Facts

- A residential tenant signed a printed form lease for an apartment in a building under construction; the lease commencement and occupancy date were March 1, 1972.
- The tenant prepaid one month’s rent and a security deposit totaling $464.
- The lease included a construction-delay clause stating that if the building was not completed by the commencement date, occupancy (and the lease term) would begin when construction was completed.
- The apartment was not ready on March 1, 1972.
- On May 12, 1972, the tenant notified the landlord that the delay forced her to find other housing, sought cancellation, and demanded return of the prepaid sums; the landlord refused.
- On June 29, 1972, the landlord stated the apartment would be ready July 1, 1972, approximately four months after the promised start date.
- The tenant testified that the delay clause was not explained before signing and that she lacked counsel when executing the lease.

## Issues

1. Whether a landlord breaches an implied promise to deliver possession when it fails to provide the premises on the lease commencement date or within a reasonable time thereafter.
2. Whether a tenant may treat the lease as terminated and recover prepaid rent and security when delivery of possession is delayed for months.
3. Whether a construction-delay clause in a form residential lease is unenforceable as unconscionable (and whether that question must be reached).

## Decision

- The trial court entered judgment for the tenant, ordering return of $464.
- The Appellate Term affirmed without costs.
- The Appellate Term held the landlord failed to satisfy an implied promise to deliver possession on the fixed commencement date or within a reasonable time.
- Because the implied-promise ground resolved the case, the Appellate Term declined to decide whether unconscionability doctrine applied to the lease.

## Legal Principles

- A residential lease with a fixed commencement date carries an implied promise that the landlord will deliver possession on that date or within a reasonable time.
- A substantial, unjustified delay in making the premises available constitutes a failure of that implied promise and permits the tenant to treat the lease as terminated and recover prepaid rent and security.
- An appellate court may affirm a tenant’s recovery on traditional landlord-tenant contract principles without reaching a trial court’s unconscionability rationale.

## Conclusion

The court affirmed a tenant’s recovery of prepaid rent and security where the landlord failed to deliver possession by the lease commencement date and did not do so within a reasonable time, making rescission and restitution appropriate without deciding unconscionability.


Seabrook v. Commuter Hous. Co., 79 Misc. 2d 168, 363 N.Y.S.2d 566 (App. Term 1973)