Can my tenant break the lease just because of noise from upstairs?

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Question:

I have a tenant who has broken her lease by moving out of the condo. She complained that the upstairs tenant was making too much noise while entertaining a female guest, and that she couldn't get any sleep and had to get prescription sleeping pills. According to the tenant upstairs, he and any guests went as far as to take off their shoes when they entered the unit so as not to disturb the departed tenant. I had instructed the tenant to call the police if the fellow upstairs was really making that much noise. On one occasion, she did, but the police drove by the unit and didn't hear any noise, so drove on. The tenant informed me that she was buying a house and was moving out.

Because the lease agreement stated that the security deposit would only be returned if the tenant didn't default on the lease, I have not returned the security deposit. I have informed the tenant that the security deposit would be returned once rent is paid to fulfill the term of the lease.

She has since filed a claim in small claims court for the security deposit plus moving expenses. I have countersued for the unpaid rental, commission charge for finding a new tenant and the make ready. Who is in the right?

Answer:

With all the subjective opinions competing in this case, no one could fairly tell you who is right without hearing from all the people involved. This is the very essence of judgishness, which you should find put to the test when you appear in small claims.

Here's where you are pinned: If you can prove to the judge that the "too much noise" was just an excuse to get out of the lease, you may win. On the other hand, the tenant might be able to muster evidence that a rumble the size of an earthquake shook the condo every time the upstairs neighbor traipsed across the floor. But don't be too hasty to countersue for rent due under your lease -- even if the tenant left for no good reason, in most states you must take reasonably prompt steps to re-rent and credit the old tenant with the new rent.

Our advice: Get your evidence in order. And cross your fingers.

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