|There comes a time when you need to get out of your lease, and your landlord won't let you. How you handle it from there makes all the difference in how you come out. Do it right.|
You have reached a point where you need to get out, either because you can't stand it any longer, or for other reasons. You want to "break the lease". [For purposes of this discussion, this means that you want to prematurely end your rental agreement which has not yet expired. We're not talking about breaching the contract in other respects.] What's the big deal, anyway? Why wouldn't the landlord let you leave, particularly when the housing shortage is so bad that he'll fill your vacancy immediately? If your unit is rent controlled, he should kiss your feet for leaving voluntarily and sparing him the relocation assistance plus let him raise the rent. Common business sense and reasonableness all suggest going along with your plan.
However, you have a landlord who is more concerned with showing you who's boss, and forcing you to pay rent for a vacant unit, out of arrogance, ego, and sadistic needs to dominate the vulnerable. Otherwise, you wouldn't need this advice. If you had a reasonable landlord, he would have agreed to let you go, and shrugged off the intervening vacancy. Right? He tells you that you can't move, or that you have to pay some huge amount of money for the privilege of leaving, or that you will owe the rest of the rent, even if you're not there. It all seems so unreasonable. It is. But it doesn't have to be that way.
Regardless of what the landlord told you, you can break the lease, and minimize your losses, but you have to do it well. Normally, the landlord threatens to evict you. Here, you're already leaving, so threatening to keep you there seems logical to them. Most resident managers and property management agents have no idea what your rights are, or how you might turn this around. In their arrogance, threats are all they know. Reasonableness and respect are the last things you'll get.
The purpose here is to help you accomplish your goal: to get out, with the minimum losses and hassle. Keep in mind that this is presuming the normal circumstances, and that slight differences can make a difference in your case. Law is a set of rules regarding interrelated facts, and if any of them change, the solution could change. This advice is free, but it is no substitute for direct attorney consultation and involvement. If you do contact a lawyer for help with details, this gives you lots of advice and information that will help you use that lawyer's time cost-effectively, to learn what to do, and how.
We begin with an explanation of the basics, such as what a legal reason might be, the types of legal reasons, and how to assert the legal reasons. Then, we review how to minimize your losses if you don't have a legal reason. Finally, we discuss various approaches which may cause the landlord to want you to go away, despite what they said earlier.
This is an abbreviated version of the Lease Breaking Kit soon to be available.
Do You Have a Lease?
Before you get into the complications of breaking a lease,
you want to be sure that you have one, as opposed to a monthly tenancy. A rental
agreement can be either written or oral. It can be for a fixed time like a one
year lease, a month-to-month tenancy, or until some event such as the tenant's
death. To be a lease, the agreement has to specify some time or event when it ends,
such as a given date or specified period of time, like a year. If it doesn't
specify either, it's a month-to-month tenancy by operation of law [Civil Code
1945] terminable by a 30-day written notice, even if the form itself is called a
"lease". Landlords often screw up their own forms. Here are
examples of agreements that look like leases, but aren't:
a. Some form leases are made for yearly or monthly rentals, with a box to check for each, except that neither box was checked! If the lease doesn't otherwise clarify which it is, the agreement is a monthly tenancy.
b. It may be made to expire on a date, but the date is left blank. It's a monthly tenancy, not a lease.
c. Some rental agreements look like leases, but are actually month-to-month tenancies:
1. The agreement says that the security deposit is non-refundable unless you stay at lease X months. That is a monthly tenancy with an illegal deposit provision [can't ever be nonrefundable].
2. It may say that your free month of rent is payable unless you stay for X months; this is a monthly tenancy, with an illegal attempt to get around the nonrefundable deposit laws.
3. It may require you to pay several months' rent in advance, but that doesn't create a lease, either. However, unless the agreement sets an outside date when it ends, or otherwise defines the term of the lease at a set period of time like a year, you probably have a monthly tenancy
d. The landlord checked too many boxes, so that the agreement says that it is both a lease and a monthly tenancy -you get your pick, under rules that apply the contract as reasonably understood by the one who didn't create the ambiguity.
e. The agreement was a lease for the first year, but then became [by its terms and/or Civil Code 1945] a monthly tenancy when you continued in possession after that, with the landlord accepting your rent [i.e., same agreement except for time].
f. The agreement says it's a lease, and has an ending time, but also allows either party to end it prematurely with a 30-day [or as little as 7-days'] notice. Normally, that provision would only apply once the lease has become a monthly tenancy, but it is not unusual to find a lease that makes it always an option, in which case, the rent and other terms are frozen for the year, but either party can bail.
If you do have a month-to-month tenancy, you can get out legally with only a 30-day written notice. If you want to get out sooner than that, we will show you how.
Ending the Lease Without a Hassle
Lest we forget the obvious, there is nothing wrong with simply working this all out with the landlord and mutually agreeing to end the lease. People can make a contract and agree to end it. It happens all the time. In case you presumed that the landlord was against it, or either of you was under the mistaken belief that a lease had to proceed to to its end, it wouldn't hurt to discuss that with the landlord. Do this by phone, informally; if he's going to agree reasonably, he'll accept that, and prepare the final papers. If he won't talk to you, or insists that you put it in writing before he will consider it, he intends to deny your reasonable request. Don't both putting your request in writing. Coming to a reasonable agreement can save a lot of money, stress, and time. Probably you've already tried that, and seeking this advice was Step 2. If you DO make such an agreement, put it in writing and both of you sign it and get a copy; otherwise, you get suckered into leaving the place, and still held liable for the rent..
Another obvious situation is where your lease is about to end, anyway, and you don't want to stay past that. In that case, you don't have to give any notice at all, and can just leave at the end of the lease term. The landlord doesn't need any additional notice that you're leaving, and you're not entitled to it either, if the landlord wanted you out at the lease's end. The only exception to that is rare: where your lease expressly states in bold print right above your signature that it automatically renews for another year unless you give notice. In that exception, you do have to give that notice to end the lease under its terms. If you didn't give that notice, you need this help.
A common misunderstanding among tenants is that if you move out, that ends the lease. "Hey, I'm outta there. They see I'm gone. It's over! Right?" Wrong. It ends possession, but not the obligation to pay rent under the contract, which could continue until the end of the lease term. If you have rent of $1,000 per month, and move out 6 months into a year lease, you could owe up to the $6,000 which you promised to pay for the rest of the lease term. Your moving out would be like the ostrich who hides his head in the sand. More is required of you, or the hassle you sought to avoid is only beginning..
Another common misunderstanding is that if you give notice that you're moving, that ends the lease. Wrong, again. If it's a month-to-month tenancy, you can end it with a 30-day notice as discussed above [Civil Code 1946.1]. For a lease however, that provision in the law doesn't apply. There are some leases which actually do permit the tenant to vacate with a 30-day (or whatever) notice, or upon certain conditions. Those leases are rare. At most, your giving notice only starts the landlord's obligation to find a new tenant, but it doesn't get you off the hook by itself. Your hassle is not over by a long shot.
Do You Have A Legal Reason to End the Lease?
It is easier to have a LEGAL REASON to terminate your lease, than to "break" it. This means a reason which the LAW recognizes as a VALID one for terminating the lease. That's right. The law itself created leases, but recognizes that under certain circumstances, you have the right to end the lease prematurely, even if the landlord is throwing a tantrum in protest.
If you have a legal reason to terminate the lease, you can do it, regardless of your actual motive. Your motive is why you really want to break the lease, in real terms: a death in the family, a job transfer, a divorce, or moving to your new house. You may have the most honorable motive in the world to break your lease. However, that by itself doesn't excuse your failure to follow the contract. Motive is irrelevant, here. Without a legal reason, you have a bigger battle on your hands. Law is about power and rights, not common sense and fairness.
Here are a few examples, where the lease can be broken,
but not for the real reason you are leaving:
(1) You lost your job and have no money to pay rent. Sorry. However, the heater doesn't work. There's your legal reason.
(2) You are getting a divorce. So what? But the apartment is an illegally converted garage. Now you have it.
(3) Your employer is transferring you to another State. Too bad. Except that the windows don't have screens. You're OK.
(4) Your love affair had a tragic ending, and bad vibes. So write song lyrics. But the roof leaks. Escape hatch is now open.
Even if the reason that justifies your breaking the lease doesn't really bother you, you can still use it to legally end the lease, if you want. The law is like a car. If you have the key, you can drive the car. The need to go somewhere doesn't replace that key. Where you want to go doesn't matter to the car. A legal reason is your "key" to drive away from the lease.
The Many Legal Reasons to End a Lease
You can legally end the lease for several reasons, one
of which may apply in your case. Review the ones that apply to you:
1. Uninhabitable conditions, which only need to affect habitability, not necessarily unlivable, and which may include:
a. Infestations of cockroaches, rats, or other vermin
b. Noxious odors, such as from sewage leaks, mold and mildew, dead rats in the walls, pigeons nesting in the attic
c. Noisy neighbors in your building, or
d. Criminal activity in the building or neighborhood, such as drugs and gangs
2. An illegal unit, such as an illegally converted garage, basement, or attached structure you're living in [a common situation]
3. Government closing down the building, due to:
a. severe illegalities, such as construction without proper building permits, a dangerous structure, and zoning violations
b. fire or other structural damage [red or yellow tagging]
c. earthquake, flooding, or other natural disaster damage [red or yellow tagging], or
d. demolition by the government, such as for Redevelopment goals, eminent domain, tax lien sale, drug-related confiscation
4. Death, severe hospitalization, incarceration, or insanity of the tenant [your legal representative would handle this]
5. Bankruptcy of the tenant [Chapter 7, or abandoning the lease in a Chapter 11 or 13 Bankruptcy proceeding ]
6. The person who rented it to you may not have had the right to do so, because:
a. The person was not the owner, or authorized by the owner, to lease it [a scam used by some con-men]
b. The person was an unlicensed property manager, whose contracts are void [there are many of these]
c. The person was a tenant, who was not authorized to sub-lease or assign the place to you by their rental agreement, or
d. The business entity that is supposed to be your landlord doesn't legally exist [such as a corporation, that isn't one]
7. The lease may be tied to a job on the premises, which you quit, such as a resident manager, grounds keeper, etc.
8. The landlord lost the land by foreclosure, and the bank or new owner took over, but you haven't paid rent to them, yet.
9. The lease is oral, but is for more than a year by its terms, making it void under the Statute of Frauds as a legal matter.
Ending the Lease under Civil Code 1942
Ending the lease using Civil Code 1942 is a two step process. First write a letter to the landlord [keep a copy] requesting that the "following list" of items be immediately fixed. Start the list with the worst item, and go into some juicy details about how it negatively affects living there. You can make a small paragraph for each or simply list the item with some detail. Should this come to a legal battle, this will be the judge's first impression. Make it firm but polite in tone, with no profanity. Be sure to mention the prior efforts you made to ask him to fix these things, with some detail as to when, and his responses. This letter fulfills the first part of Civil Code 1942: notice to the landlord of the conditions. Even though the law doesn't require written notice, experience shows that landlord is more likely than not to deny he knew anything about it, that you praised him for maintaining such a palace, or that you caused everything yourself.
In this first letter, don't mention your plan to move for other reasons. For one, your Motive is irrelevant to moving. For another, it confuses the issue, making it seem that these conditions don't really exist, because you are making them up as an excuse for breaking your lease. As noted above, you are accomplishing your goal to fulfill your motive, but these are not made up conditions. They conveniently supply the legal reason to end your tenancy which the landlord's lack of common sense or fairness would not permit. The law only wants to know if you have a valid reason. Stay focused on that key.
This letter is not to appeal to the landlord's decency [which we presume is nonexistent, or you wouldn't have these problems], but to the judge, who will decide whether the landlord had notice and whether the conditions justified your ending the lease. With this letter, the judge can be convinced that the landlord had notice, and the burden then shifts to the landlord to show what he did, when so notified. In court, your letter speaks for you, and makes your case easier to present. Also, having so stated your case, you do not have the obligation to give any further notice to terminate your tenancy. The Legislature eliminated that, as a means of punishing the slumlord. All you really need to do after that is leave after a "reasonable time". This does not have to be 30 days, as it would to repair and deduct, and probably relates to the severity of the problem and the difficulty of having it repaired.
Weak efforts by the landlord do not satisfy Civil Code 1942; if they did, why bother writing this law. It is commonplace for the slumlord to send over someone for an estimate to make it look like they are making efforts, only to not hire the company to do the work, or claim they are seeking other estimates. It is also commonplace for the landlord to send over day laborers or an unqualified handyman to "fix" the problem. The worker either doesn't know what they are doing, makes it worse, doesn't fix the problem, only fixes it half way, doesn't or can't get the permit, isn't licensed to do the work, can't find the parts, or uses a chewing-gum-and-coat-hanger solution which doesn't solve the problem at all. Chances are, that's all you got when you asked before. If such a half-hearted effort is made, you should write another letter to the landlord explaining that the effort did not solve the problem, that you only have had people giving estimates, with no excusable failure to just fix the problems. If you don't write that follow-up letter, the landlord tells that judge that he honestly thought the problem was solved, and had no idea that it wasn't, because you SAID nothing. Your letter underscores what a cheap bastard the landlord is, and shows his bad faith, when you get to the Security Deposit battle, to triple your recovery. Efforts t6o fix the problems after you have made plans to go are too late, because you have the right to terminate after the problems remain unfixed after a reasonable time, and you can't be denied that right by the landlord making repairs as your moving van pulls up.
Landlords are generally unaware of this remedy, mostly because tenants rarely use it, and until recently, leases were a rarity. They will deny that you can do that, and even threaten to take you to court if you break the lease. Yet, ask them why Civil Code 1942 doesn't apply, and you'll learn that they have no idea what they're talking about. Tell them that their threats of a lawsuit constitute retaliation and bad faith, that you are writing that down, and that it will be another reason that the owner will be sued, and will want to know WHO brought this upon him. Get their name spelled correctly; watch how their bravado fades as you ask them to spell their name. If they are so confident that they are right and will not be fired for taking this position, they should have no problem identifying themselves for you. Also get the name of their supervisor, spelled.
When you are ready to leave, you should [but are not required to] write a final letter, explaining that since the landlord didn't fix the items you had complained about within a reasonable time, you are leaving the rental unit under Civil Code 1942, and that you want a final inspection of the premises, to be sure you get your security deposit back. Again, this letter is not to appeal to the landlord's reasonableness, his duty to comply with the law, or otherwise resolve this by the book, because you will probably get an arrogant and hostile response. Instead, it is to show the judge, that you did vacate under Civil Code 1942, and did request a pre-termination inspection. Your rent check for prorated rent through the last day should also show "Civil Code 1942 termination prorated" in the memo portion, not because it has to, but it makes your partial payment clear.
No Legal Reason
If after going through the above legal reasons, you have no legal reason to break your lease, Plan "B" is to minimize your losses. Civil Code 1951.2 says that if you leave, you owe the rent for the rest of the lease term MINUS what YOU can prove the landlord COULD HAVE AVOIDED LOSING. The landlord also has a common law duty to minimize his losses ["mitigate damages"]. Therefore, you minimize YOUR losses partly by trying to minimize the LANDLORD'S losses, and partly protecting your interest in the Security Deposit which the landlord intend to apply. If you do this right, the landlord could end up owing YOU money.
Here is the common situation. The landlord doesn't like YOU calling the shots, and almost instinctively will resist you at every turn. You say, "My folks are sick back East and I have to go take care of them, so I'm moving out in a week." They say, "Oh, no you don't! We'll keep your deposit and come after you for all the money through the end of the lease, and all our legal fees and expenses." You ask for a final walk-through regarding your security deposit, and they refuse to do so, because they don't "recognize" your termination. Then, you move out, and they advertise the place for much more than you were paying, to "test the market," meaning they want to see if they can get that high a rent. Your unit stays vacant for 4 months after you're out, so they keep all of your deposit, and charge you with additional cleaning and repairs, plus the other 3 months' rent.
What is wrong with that example is that (1) they didn't do the walk-through, so cleaning and repairs are probably not deductible, (2) they didn't try to minimize their losses, but instead chose to "test the market," secure in their belief that you were the guarantor for the normal rent, (3) you get credit for the extra rent they are charging the new tenant, against the rent you normally would have owed, and (4) if they kept your deposit in bad faith, they have to repay you triple that amount. Altogether, you might owe the landlord $200, but he owes you $3,000, as a result.
Step 1 is to advertise your unit for rent. The Recycler, Craig's List, Westside Rentals, or another website or local newspaper can be used. When people call your number interested in your vacancy, you explain that you are leaving and helping the landlord show the unit [That is correct, by the way, even if he do9ens't know you're doing it or approve]. You tell them about the place, the rent [what YOU are paying], and if they are interested, you set up a showing and show them your unit. If they are interested, you get their name, WORK PHONE, and move-in date [as close as possible after you're out and the place is ready], and let them know how much your security deposit is [they would be reimbursing you]. You can even advertise the place for LESS than you are paying, but you would owe the difference during the time your lease continues. For example, you might not have the time to clean the place or make any repairs before you leave, so they take it "as is," and you give them a break in the rent. You can even offer to sublease it to them, but that is not necessary or advisable.
Step 2, which you can start at the same time as Step 1, is to request a "final walk-through" of your unit by the landlord. This is done under the Security Deposit statute, Civil Code 1950.5(f). Best to do this in writing and keep a copy for your records, and possibly to show a judge. The landlord is supposed to visit the place, see what cleaning or repairs are required for you to get all of your deposit back, and then hand you a list of those items in enough time BEFORE you leave that you can do them, and thereby be entitled to your full deposit back. Given the landlord's arrogance, they probably will refuse to do the walk through, with the probable consequences that they "waive" any deduction they could have brought to your attention by such inspection and report. You hire a cleaning crew to clean your empty apartment and shampoo the rugs, before you go, and turn in the keys to the landlord.
Step 3, which you do after you have the first few names, is to forward that list of prospective tenants on to the landlord, in a letter that states these tenants have seen your apartment and agreed to pay your same rent starting the dates shown, and that you will make up any difference in the rent. You tell them that you are having the place cleaned and that there is no damage that you caused, so you are expecting your deposit back. You want to keep a copy of this, and probably send it certified, return receipt requested, giving your forwarding address for your deposit. Keep forwarding new lists of names to the landlord until you leave, and keep copies for your records.
Step 4, you monitor the landlord's progress on leasing the place, having a friend call up about that vacancy and asking the price and terms, offering to pay the amount you were paying -you guessed it -your witness for trial. You also ask for any backup paper for deductionbs made by the landlord from your deposit.
After 21 days from leaving, you sue the landlord in small claims court for triple your deposit [up to $5,000 total], on grounds of his bad faith retention of it, under Civil Code 1950.5. He counters that you owe him leasing agents fees, legal fees, missing rent, and whatever. At court, you point out Civil Code 1951.2 to the Judge, show the lists of people who were ready to rent your place at the same, or whatever, rent, and that therefore the landlord could have avoided losing ANY money, if he weren't so stubborn, and just accepted one of these replacement tenants. You show your letter requesting a walkthrough, explaining that he refused to do it, and that you cleaned your apartment professionally, anyway, showing the receipts. You show your letter asking for the refund of your deposit, and your request for the deduction backup papers, and explain that you got no response. You argue that since no deductions were proper, you should have gotten it all back, and that since he refused to do so, and has no valid excuse, you should get triple the deposit.
There are more details than can be put here, but you can get them through the Kit, when available, or through a consultation arranged through this site.
Making the Landlord Want you to go
"Be careful what you wish for; it might come true" and no truer is it than in this scene. With a lease, the landlord can't evict you except if you violate the lease. If you're leaving anyway, he has little leverage over you. You've taken away his "ace," the threat to take your home away if you don't obey. By the time you finish, the landlord may even PAY you to go, just to get rid of you.
Start a Tenant Association in the Building/Complex
Landlords absolutely hate building tenant associations, because they can all act in unison, all cause great damage, all learn their rights, and can't all be evicted at once for the landlord's own economic wellbeing. You can tell the other tenants about this website, urge them all to call the City and County inspection agencies to fix things, urge them all to sue the landlord for whatever, repair and deduct, withhold their rent, talk to the City Council about rent control and eviction protections and slumlording. and so forth. Even though you are leaving, and don't have a legal reason to terminate your tenancy, the other tenants may be more than willing to pick up their sword and follow though. City inspections can cost the landlord tens of thousands of dollars in repairs he had sought to avoid. 20 lawsuits in small claims court at $5,000 each is $100,000, a chunk of change even for a wealthy landlord. When the landlord tell you to stop, you say, "what are you going to pay me to stop? I may change my mind and stay, since this is such fun." You get the idea. At least you have their attention for some reasonable negotiation at that point. You can take it from there.
Sue the landlord, yourself
Even if you don't have a legal reason for breaking your lease, you still may have things to sue the landlord about. They could be anything from reduced value for the time when things were not fixed, noisy neighbors they did nothing about, a theft from your car or apartment they didn't reimburse you for, harassment, retaliation, trespass, invasion of privacy, slander, nuisance, breach of good faith and fair dealing, negligence, intentional infliction of emotional distress, battery, conversion "theft", breach of quiet enjoyment, and many more things that might apply. Faced with being sued by you, the landlord wants out, and may be willing to release you from your lease with no losses to you in exchange for paying you less than you are suing for.
Expose the hidden landlord
Many slumlords and land barons hide behind resident managers, property management companies, fictitious business names, corporations, limited liability companies and so forth, so that you won't know who is doing this to you. Their staff refuses to put you in contact with the true owner, because he doesn't want to be bothered by your trivial concerns. However, if you do the research on this site, you can find the home address and phone of the landlord, take a picture of his house and family and himself, show where he works, get a map from MapQuest or wherever from the apartment to his house, and put this all on a flier which you distribute to the other tenants in the complex on an announcement that you are organizing a picket in front of the landlord's house, and are calling in the TV cameras to report on it. You can even contact the tenants at the other buildings he owns and spread the word even further. You can find those other buildings by more research, with which real estate agent friends might be helpful. Someone who doesn't want you to know who they are definitely does not want to be on the 6 o'clock news for his friends and enemies to see and chuckle over. Sometimes it's a celebrity or other public figure who's behind it all, and the adverse publicity could drastically affect their income. Moreover, the landlord may be more than nervous that so many angry tenants know where he lives, and pickets may be the least of his concerns. The Sheriff can serve the small claims papers right there at his house, with all his neighbors watching as the black and white pulls up in his driveway. Obviously, you can't threaten the landlord with harm or damage his property -be sure to pass this along!
Call in the building and health inspectors, yourself
Even if your unit is not directly affected by conditions on the property, which would enable you to move out, there may be other problems in other units, where the tenants are afraid to any anything, but you can make the reports for them. Any person can make the report -they don't have to be the affected tenant. The building and health inspectors are used to this, having third parties call in the complaint. They respond just the same. Then it's not the other tenants' FAULT that you called in the inspectors, and they don't fear retaliation.
If you were the landlord, would you want to keep on a tenant who did all these things? What else could they cook up? [There's more!] This is one tenant about whom you might well change your mind and agree to a premature termination and a "note to self." At the very least, these are fun things to do, that get you out of victim mode, and certainly teach the landlord a lesson they'll never forget.
Ready to take the next step? Contact Ken Carlson