Breaking a lease
I've written about how to write a lease. I've discussed some of the wild notions associated with leases and breaking them. So I suppose I shouldn't have been surprised when I recently discovered that one of the biggest ways people find my blog is by searching an engine with some variation of the terms "breaking lease". So since I don't have a large quantity of time to blog today, I thought to pontificate upon the terms of a lease and it's legal ramifications.
It seems (based upon the search terms) that there is a lot of confusion on how leases work. Most people seem to have the misconception that leases are covered by general law, and the courts have mandated certain terms and conditions, as well as penalties. In fact, many people who find their way to my blog are curious about the penalty associated with breaking a lease.
What is a lease?
While there are some laws that cover aspects of the landlord/tenant relationship (almost exclusively at the state level) those laws are usually aimed more towards the safety of the tenant, discrimination and eviction procedures. The lease itself is barely mentioned, for example Virginia laws mostly just remark that a signed lease must be provided to the tenant and it can't be changed without every one's consent.
Leases themselves are managed under a branch of law called Contractual Law. A contract, simply put, is an agreement between two people to exchange something, usually exchanging money for some sort of good or service. A great example of this is a mortgage agreement. When you get a mortgage (or any sort of loan) you sign a contract that pretty much states that the bank will give you a large sum of money right now, and you are to pay back an even larger sum, but over a long period of time.
The terms of the lease are strictly between the two parties. For example you could sign a contract to pay Uncle Joe $20,000 to paint your Honda Accord. It might not be a very fair contract (unless Uncle Joe is world-renowned), but if you sign it you've agreed to it. Any goods and services can be exchanged, best shown by this couple's prenuptial agreement in which she must cook 3 breakfasts a week and he must take her to London for her 60th birthday "keeping in mind that London is an expensive city, period".
OK, but what happens when a lease is broken?
Technically speaking a lease cannot be broken. Since a lease is a binding contract, you must fulfill your end of the bargain, regardless of whether you are a tenant or a landlord. If you go to court with a reasonable rental agreement, the judge will almost certain rule that the terms of the lease be enforced.
Most leases have a buy-out clause built into them that allows one party of the other to prematurely end the lease by following a series of steps. These steps most often include paying some sort of premium to the other party, but could also include producing special paperwork (such as a tenant providing an offer letter from a company more than 50 miles distant). This buy-out clause is what we refer to when we speak about "breaking a lease", but it's a perfectly legal method to end that lease early.
It's important to note that lease do not have to have buy-out clauses built into them. If there isn't a buy-out clause in the lease, and the other party is not willing to negotiate then you must fulfill your end of the bargain. Let's pretend that you own a house and rent it out to a nice family who signed a 24 month lease. Two months later you receive an unsolicited purchase offer for a large sum of money. You review your lease and discover that while the tenants can buy their way out, there's no such provision for you. The family is perfectly happy with the home and has no intentions of moving. Depending on the circumstances of the case, it's very likely that the family can force you to legally abide by the terms of your agreement, and not sell.
Whether you are a landlord or a tenant, it's very important to carefully review a rental agreement and understand how the buyout clause is defined. In Biff and I's lease we have chosen to set the buy-out clause (labeled as Early Termination) as follows:
Tenant may choose to terminate the Agreement before the natural expiration of the Agreement. To exercise this option, Tenant must submit his intentions, in writing, to Landlord at least thirty (30) days before termination and must pay a penalty equal to a single monthly installment in addition to their final months rent. In paying this penalty, the Agreement will be terminated and the Landlord will not hold the Tenant accountable for any of the monthly installments remaining in the term of this Agreement.Basically in crafting this agreement, Biff and I have guaranteed ourselves 60 days to find a replacement tenant (30 days notice, plus an extra payment with covers another 30 days). This is good for both parties in that it allows a tenant to leave without too much trouble, and it gives us plenty of time to find a replacement. Of course, in keeping with what was mentioned directly above, we've also included a way by which we can terminate early as well.
The Landlord may choose to terminate the Agreement before the natural expiration of the Agreement. To exercise this option, the Landlord must submit his intentions, in writing, to the Landlord at least forty-five days before the date of termination. The Tenant has the option of moving out at any time before the date of termination. The Tenant is responsible for paying all rents due up until the date he moves out. On the date of the move out the Landlord must refund an amount equal to one (1) monthly installment to the Tenant.If Bill Gates moves to Virginia tomorrow and wants to buy one of our houses for $5 million, then we have a way by which the deal can be completed. Look at the wording again, this clause means that Biff and I can terminate the lease for any reason at all, and the tenants can't object as long as we follow the steps set forth in the lease (giving them 45 days notice and refunding a month's rent).
Alternatively, bear in mind that any contract can be changed at any time as long as all parties agree on the change. In the above example with the landlord reciving a large offer on his house, he could possibly offer money to his tenants. If they agree to it, and sign an agreement to that effect, the earlier lease is then nullified.
As a tenant that same laws apply. You can negotiate your way out of any lease as long as you can convince the landlord. Unfortunately it is typically impossible to neogtiate with a large management firm, in the same way that you usually can't barter with Walmart. However if you are dealing with a small landlord, he might be willingly to allow you out of the lease if you can sweeten the deal enough for him. One possibility could be offering to locate a replacement tenant that meets his criteria.
However, if either party refuses to negotiate, the lease remains.
So I'm taking the lease to court...
So if all else fails and you are trying to escape a lease (or enforce a lease) in civil court, there are several things you need to know about contract law. The first is that you must bring a copy of your lease signed by both parties. If you plan your argument based upon the terms of the lease (such as trying to get a deadbeat tenant to pay up) and you don't have a copy handy the judge will most likely throw out your case. The same goes for tenants, you must have your own signed copy of the lease to present to the judge.
Once the judge has a copy of the lease, it's most likely going to be enforced. If you are trying to escape the terms of the lease, there are a few common defense that are used:
- Lack of Capacity - One of the rules of a contract is that both parties must be capable of understanding and fulfilling their side of the contract. There are many ways to dispute capacity, some of the more common including mental illness, such as Alzheimer's, (proving a lack of understanding of the contract) and bankruptcy (proving a lack of ability to fulfill the contract). Special consideration can be awarded to people (either tenants or landlords) who can claim financial hardship.
- Unconscionability - Simply put this word means that one party used a superior bargaining position to force unfair conditions upon the other party. For example if a landlord rented his unit out to a couple who spoke little English and used their poor understanding to add tremendous fees and dues. Unconscionability is not a guarentee that a contract will be voided, and the court often has great leeway in how it deals with such claims; from voiding the contract to simply amending it.
- Illegality - A contract can be voided if it is ruled to be illegal. For example, Virginia state law clearly defines the maximum amounts that a landlord is allowed to collect for a security deposit. If a landlord collects too much, then that clause is illegal. As I mentioned in "Breaking Down a Lease", one illegal clause can potentially void an entire contract. The best way to prevent a complete dismissal is to add in a clause of Severability.
This is a fancy legal word that means if some part of this lease is invalid for some reason (like a judge throwing out a no-liability clause) the rest of the document is still considered valid, instead of the entire document just getting thrown out.
- Misrepresentation - The misrepresentation argument is used when one party has lied or stated falsehoods before the contract was signed. A tenant could use this argument if the landlord planned some major renovation work before signing a lease, but didn't disclose that fact to the tenants. Alternatively a landlord could use it if a tenant lied on their application, for example with regard to income or number of potential inhabitants.
Never make a promise that you don't fully understand, and never sign a substantial contract (like a lease) without carefully reading it over. Too many horror stories (like the poor guy I wrote about whose lease had a buy-out clause of three months rent (at the very bottom of the article)) could have been avoided if people simply took the time to understand what they were getting themselves into.
340 comments:
1 – 200 of 340 Newer› Newest»From what I've read, the lease agreement really isn't like that at all where you need to take them to civil court. If a tenant leaves early, there's no penalty. Instead, he's still responsible for paying the lease until the owner/landlord can find a new tenant to replace the tenant.
Anon - If there is no clause in the lease to handle early termination, then yes, the lease is never broken. If you move out and there is no termination clause, then you are responsible for paying rent until the lease ends.
However most leases include in them a clause which allows either party to break the lease, but a penalty is incurred. Note that this penalty is not by law, it's simply defined within the lease. If this clause
One thing you borght up that's interesting is "he's still responsible for paying the lease until the owner/landlord can find a new tenant to replace the tenant". Technically, without a temination caluse, you have to pay the rest fo the rent regardless. But there are federal regulations in place that make it illegal for a landlord to collect double-rent.
Our landlady said that because we wrote on our lease, that the lease itself was nullified. She said that we would have to sign another copy without our writing on it, but we never did. The writing was based on verbal agreements between us and the landlady. We are trying to get out of our lease. We gave a written notice when we first moved in that the carpet needed replaced because of excessive pet smell and that there was black mold in the shower that we have not been able to remove with bleach. Our landlord denied everything on our list. Our landlord is really shady, but I heard that since we gave them notice of these health issues over 30 days ago we can use that to get out of a lease. Is this true? The furnace is also on the fritz and only heats the house to around 55 degrees.
I signed a lease, in Indiana, with two other individuals and they decided to back out of the lease leaving me responsible for the entire rent. Is there a breach of contract here?
I live in VA. I was recently laid off from my job and the temp job I have makes it hard for me to afford my rent. Do I have the ability to get out of my lease without penalty due to financial hardship?
I live in VA. My parents had to recently leave CT and move in with me. Our lease ends July 31. We signed a new lease, but it does not start until August 1. We signed a new lease for the next year in March (but don't have a copy of it). My parents needed to move in about a week after it was signed and we have decided there is not enough room here. Any help?
I heard some states like NY allow tenants to walk away with the cause of buying a house. I wonder if VA has similar laws that will apply. I searched around, and didn't find any. Thanks.
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If a tenant breaks a lease and is willing to pay the penalty fee, at what point during their 30-day notice window are they obligated to pay the penalty?
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My lease document do not have Lay off Protection Plan. I am living in Tennessee and i got a job in California. I have given the 30 days notice. Even though lease document do not have the Layoff Protection plan, how to check the County / State law and to verify that by law my lease should have the Layoff protection plan in it.
Please reply accordingly
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Amk
One thing you should mention is: if the tenant moves out early, and continues to "owe" rent, the landlord owe a duty to mitigate damages. If tenant leaves for whatever reason two months into a 24 month lease, the landlord cannot be content to sit back and collect with a normal business practice to fill that unit. An average time can be around three months. Although it is a binding contract, this may be an argument in a civil case for the tenant to reduce the resulting bill. Just my thoughts.
before signing a 2 years lease, I asked what can I do if I need to move as I work for the govt, and have been transferred here, and could be transferred back at anytime, I was advised to supply a letter from my employer and give a 30 days notice, I signed the lease. Now that I have been transferred the landlord states that there was not mention of this in the lease and want to hold me responsible for term of the lease. I spoke to lawyer as I have a witness who was with me who will support my story. any advice?
Also tenants should be wary of the laws if they are evicted, as should the LL if they must evict a tenant. In Louisiana, the law is mutually exclusive. You can evict a tenant and charge past due rent until the time that they vacate the rental OR you can allow the tenant to remain in the property and charge an accelerated rent amount until such time the apartment is rented. Unfortunately, most LL don't know this in Louisiana or don't care and are skipping the judgments and going directly for collections and credit reporting.
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I need to break my 16 month lease after 4 months into the lease due to my financial situation changing. I can no longer afford the rent, I have vacated the unit, however. Is there a way to legally abandon the rest of this lease agreement?
I need to break my 16 month lease after 4 months into the lease due to my financial situation changing. I can no longer afford the rent, I have vacated the unit, however. Is there a way to legally abandon the rest of this lease agreement?
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