Breaking a Lease

     What’s a tenant to do when they have a signed leased for their apartment that does not expire for months, but get a job in a different city?  Can you break the lease?  Is the tenant going to have to pay for all those months when he or she is no longer living there?  These are all questions that have arisen with our clients in the past six months.

     To answer those questions, let’s start with the basics.  A lease is a contract and when you sign the lease both parties are bound by its terms.  When signing a lease consider whether you plan to be in that location for the length of the lease.  If there is any chance you might have to move before the end of the lease term, then you might want to try and negotiate a 60 day termination clause or even a month-to-month lease.  

    Let’s assume you did not plan to look for a new job let alone move out of state, but the opportunity of a lifetime has fallen into your lap and you just cannot turn it down.  I am also assuming for this blog post that your soon to be new employer does not want to pay for your rent for the rest of the lease term.  The first thing you need to do is to pull out the lease and read it.  Does it have a termination provision?  Does it have a provision regarding subletting? 

     If your lease has a provision about terminating early, then you can follow those provisions and give the landlord notice that you are terminating the lease.  For example, some leases will provide that with 60 days’ notice, the lease can be terminated.  What this generally means is two full months’ rent.  If you give notice on May 15, you would still have to pay June and July rent, but then no longer obligated.  If your landlord took last month’s rent at the beginning of the lease term, then you really only are coming out of pocked for one month’s rent which is a fair cost to break the lease.  Make sure you notify your landlord in writing.  If the lease specifies how notices are to be delivered, follow the lease instructions.  Some leases may require notice by certified mail or by fax and may not recognize an email notification.

     Many leases have clauses that prohibit subletting, but some do not.  If your lease does not prohibit subletting, then get those notices out on craigslist, the bulletin board at your workplace or school and put it on social media.  Keep in mind that if you do sublet, you are still responsible for the rent, so if the subletter does not pay you, you still have to pay the landlord. 

     If your lease does not have an early termination clause and prohibits subletting, then what?  You are not completely out of luck.  The next thing you need to do is to tell the landlord as soon as possible of your plans, including the date that you plan to vacate.  You can call the landlord or tell him or her in person, but follow up with an email confirming the conversation.  Ask your landlord if he or she will let you out of the lease early.  It may be that the landlord has a friend or relative looking to move in to the building.  If that is the case, then agree on a move out get and put your agreement in writing that your lease terminates as of a particular date.  You can ask your landlord about subletting, as most leases simply require the landlord’s permission to sublet.  You should tell the landlord you are willing to help get the word out and offer to post the unit within your network of family, friends, neighbors and work colleagues.  Let the landlord know that you will make the unit available to show to prospective renters.  You need to make sure that the unit is in clean and showable condition.  After all, you want someone to rent the place.  A unit with laundry scattered all over the floor and dirty dishes in the sink, is not going to be as easy to rent as a clean, uncluttered unit.  You have to de-clutter and pack anyway to move, so box up your belongings and rent storage if necessary. 

 
     The landlord cannot just turn a blind eye to your early departure and sit back and collect the rent.  A residential landlord has a duty to mitigate damages.  What does that mean?  It means that once you notify the landlord, he or she must take reasonable steps to re-rent the unit.  If a landlord does not promptly put it on the market, seeks to charge substantially more rent or does not market the property, then the landlord may lose the right to seek the unpaid rent from you.  
  
     Practically, here is how these cases can play out.  In one case, we recently represented a couple who had executed a two year lease and found out just after the first year, that the husband was being transferred.  The landlord was notified in August and the tenants even agreed to move out early so the unit could be re-rented by September 1 – a prime time for lease turnovers.  The tenant offered to circulate the available apartment throughout her network of friends, including some list servs of which she was a member.  The landlord, however, declined the tenants’ offers saying he preferred to just give it to his real estate broker.  The unit was not listed for several weeks – too late to catch the September 1 turnover date.  It was also put on the market for several hundred dollars more than the rent my clients were paying.  In that case, we were able to negotiate with the landlord and successfully terminated the tenants’ lease for just one month’s rent.  In another case, we represented a couple who had to relocate because of a new job and had about eight months remaining on their lease.  They had been in the unit for about eight years when they had moved out.  The carpet had never been replaced, nor was the kitchen updated.  In that case, the landlord began promptly showing the unit, but received feedback that the carpet had significant wear and tear.  The tenant requested that the carpet be replaced.  The landlord not only replaced the carpet, but without the knowledge or consent of the tenant, gut the entire apartment, including the kitchen and bath, making the unit uninhabitable for at least a month.  In that case, we were able to negotiate a settlement where the tenants were able to terminate their lease and receive a refund of rent as well. 

     Ultimately, the best solution is when the landlord and tenant can reach an agreement so that the tenant can stop paying the rent and the landlord can have some confidence that the unit will be re-rented quickly for at least the same amount of money.