Breaking a Lease and Leaving Early
Landlords must take reasonable steps to rerent the place if you break a lease (you won't always be on the hook for rent for the remainder of the lease term).
A lease lasts for a fixed term, typically one year, then simply ends of its own accord at the end of the term. At this point, you must either:
- sign a new lease, with the same or different terms,
- stay on as a month-to-month tenant with your landlord’s approval (in most states, the terms and conditions of the old lease (such as no pets) will carry over into your new, oral month-to-month tenancy), or
- face an eviction lawsuit if you attempt to stay when the landlord wants you to move on.
But what if you want to leave before the lease term ends? For all sorts of reasons—a job transfer, an invitation to move in with someone else, or deciding that you just don’t like the place—you may want to leave before your lease ends. If you’re lucky, your landlord will agree to let you go—a response most likely if your landlord is a decent sort or there is a shortage of rental housing and hordes of eager applicants—or, ironically, if the landlord considers you a pain in the neck and would be delighted to say good-bye.
But what if you don’t have your landlord’s official bon voyage? Like lots of legal answers, it depends, mostly on your state law and the saturation of the rental market.
Most Landlords Must Rerent
Let’s start with the basics: Your lease is a contract, obligating you to pay rent for the entire term. The fact that you pay in monthly installments doesn’t change the fact that you owe the landlord for the entire amount. So if you split early, what’s to stop the landlord from suing you for the remaining months’ rent?
Fortunately, in most states landlords cannot simply sit back and wait for the term to end, then sue you for the months you weren’t there. They must take reasonable steps to rerent the place and credit that rent to your debt. This duty goes by a mouthful of words—“the landlord’s duty to mitigate damages. ” Before you make the move, check your state law on landlord's duty to rent (that is, to mitigate damages). This tenant-friendly rule has some limitations, however:
- You may still be responsible for the costs of advertising and showing the unit.
- Your landlord must take reasonable steps to rerent, not heroic ones. He needn’t put your unit at the top of his list of properties to rent, and he doesn’t have to offer it for a song.
- The landlord needn’t accept any old applicant who walks in the door. He’s entitled to be as choosy with the next tenant as he was with you. Still, you can help the situation a lot by offering your landlord a replacement tenant, someone who has the same good credit and rental history that you did (or better).
Unfortunately, many landlords are unaware of their duty to rerent for the benefit of the departing tenant. And even if they are aware of the rule, the notion that they must make an effort to minimize the financial hit to someone who broke their lease is often tough for them to swallow. Their response is to keep the security deposit at least and often to send a threatening letter demanding the balance of the rent. If this sounds like what happened to you, read on.
When Your Landlord Hasn’t Hustled for a New Tenant
If you’ve broken your lease and taken off, expect to lose a month’s rent even if state law requires your landlord to mitigate—most judges will give the landlord a month of rent as damages, no matter how quickly the landlord advertised and showed the unit—or how quickly he could have rented it if he had tried. Your landlord will take this month’s rent out of your security deposit.
But being asked to pony up the rest of the rent due under your lease is something else entirely. If your landlord sends you a righteous letter demanding the balance due under your lease, a polite letter, citing your state’s law, might disabuse the landlord of his “right” to sit idle and collect on an empty apartment. The Sample Letter Alerting Landlord to the Duty to Mitigate, below, shows how one tenant has done this. With luck, your landlord will back off.
But what if your letter doesn’t produce the desired result? If you are sued for an enormous amount of rent or have a sizable deposit sitting in the landlord’s bank account, you’ll be headed for court—either as a defendant if the landlord sues you, or as a plaintiff if you sue to recover some of your deposit.
If the courthouse is on the horizon, you’ll have to have some proof that the landlord failed to mitigate. Be smart and, after you leave, collect evidence of the landlord’s efforts in the rerental department (or ask a friend in the area to do so). Find out whether the landlord advertised (check the rental ads for a month or so), showed the unit (ask the neighbors), rented comparable units but not yours, or in fact rented the unit and is now attempting to double-dip. In some states, if you end up in court arguing that the landlord failed to take steps to rerent, you can’t sit back and wait for the landlord to produce proof that he diligently tried to rerent. Instead, you will have to supply the proof of his laziness.
When You Have a Legally Justified Reason to Break the Lease
The previous explanation applies to situations in which you do not have a legally justified reason for leaving. Justified reasons for breaking a lease or moving out early include the landlord’s failure to maintain fit and habitable housing or substantial destruction of the property. The legal term for this is "constructive eviction," which means that by supplying unlivable housing, the landlord has for all practical purposes "evicted" you. State statutes typically have specific details, as the type of notice tenants must provide before moving out because of a major repair problem.
A tenant may also be able to break a lease early if the landlord seriously interferes with the tenant's ability to enjoy his or her tenancy--for example, by repeatedly violating the tenant's privacy rights.
In all states, tenants who enter active military service may leave before the lease term ends, after delivering notice. A few state laws list other reasons that allow tenants to break a lease, for example because of a job relocation or family health problems. If you have a good reason for a sudden move, check your state law to see whether or not you are still on the hook for rent for the remaining lease term.