Tenants Rights: What You Should Know About Breaking a Lease
When you lose your job or you experience a decrease in income for some other reason, it may be necessary to find a less expensive place to live. But suppose you still have time left on your current lease. What do you do? First of all, you should remember that it is probably best to move out, than to wait to be evicted. You may, however, owe the landlord for the remaining months on your lease. But, switching apartments on your own time schedule, even though you may end up with a penalty, is better because you avoid the emotional stress associated with an eviction.
In addition to the stress created by an eviction, it creates additional financial pressures due to the extra costs associated with the process. It will also be difficult to find a new place to live once the eviction is reported on your credit report. By breaking the lease and moving on your own timetable, you will be able to secure your new apartment with much less difficulty.
What can you do about the penalty owed to the landlord? The first thing to do is to read the lease very carefully and determine if you will incur a penalty. If either party (tenant or landlord) can give written notice to terminate the lease, then all you must do is provide such notice to your landlord. Usually, at least a 30-day written notice is required by either party. Once the proper notice has been given, you are free to move without any additional penalties. If you have an informal, month-to-month lease, then state and local laws govern, and you should seek a tenant’s organization or governmental agency in your community for information on how to terminate the lease.
But what if there is no right to terminate the lease before the term expires? You may then look for someone who wants to take over your apartment. They may be able to sublease from you in which case you would still be liable for payments to the landlord, or they may even be able to assume your responsibility completely. You then would no longer have any liability to your current landlord. You should look very closely at your current lease to see if one of these options is available to you.
You may also try negotiating with the landlord. Let the landlord know of your financial situation and ask for a reduction in rent. If the landlord won’t lower the rent permanently, ask for a few months of lower payments. Lowering your rent for a few months may be less expensive for the landlord than trying to find a new tenant and paying for the cost of your eviction. The landlord may even be willing to forgive back rent for your agreement to move. If such an arrangement is made, be sure to get it in writing.
You should carefully consider the financial costs associated with breaking your lease and moving prior to being evicted. In many states the maximum the landlord may recover is set by statute. The landlord has a responsibility to try to rent your apartment, but if he or she is unsuccessful you could be liable for the number of months remaining unpaid on your lease.
Or if the landlord rents for less than your rent, you could be responsible for the difference. The only way the landlord can collect is to sue you in court and obtain a judgment against you. This judgment will be an unsecured judgment and it may be difficult for the landlord to collect. It will, however, probably be reflected on your credit report. Unsecured judgments may be discharged in bankruptcy. If the landlord doesn’t sue you, then your loss would be your security deposit and first or last months rent if you paid this as a pre-rental condition. It is important to remember that, in the long run, the losses associated with breaking a lease can be much less than trying to hang on to an apartment that you can’t really afford.
If you choose to break your lease, you will have some financial loss. However, careful planning on your part can help you keep the loss to a minimum.
If you are unable to negotiate with the landlord and all other attempts to resolve the issue fail, you may be faced with eviction proceedings. Eviction is a legal proceeding and the process will vary from state to state. Therefore, it is essential that you contact local tenant organizations that can advise you on the eviction process in the state where you live. The entire process may be completed in as little as two weeks or it could take considerably longer, particularly if you have reasons to argue that you should not be evicted. Appeals are also possible if you lose.
There are several things, however, to be remembered. First of all, the best strategy should be to find a safe, decent place for you and your family to live, and to do this on your own terms rather than waiting for the sheriff to arrive and forcefully remove you. Again for this reason, it is extremely important that you understand the timeline for eviction in the state where you live. You should secure your new apartment, if possible, before the eviction process becomes public record. Once the process is recorded, it may be extremely difficult to find a new landlord willing to rent to you and your family.
If you do decide to break your lease, here are some other considerations:
- Give the landlord plenty of notice, preferably 30 to 60 days
- You may try advertising the apartment yourself, either by word of mouth or online
- Clean the premises thoroughly so there are no claims of damages against your security deposit and request that the landlord go through the apartment with you. You may want to have a neutral third party review the condition of the property before you leave
- Try to verify that the landlord is making an effort to find new renters
- Periodically, you may want to check the apartment to see if it is occupied
Notice to Quit
In most states, receipt of the Notice to Quit is the first step in the eviction process. Receipt of this notice does not, by itself, mean you have to move. Generally it will give you a specific number of days to vacate the property unless certain conditions are met. More than likely, these conditions are that you pay all rent that is due or that you correct any lease violations that may have occurred. In most states, if you abide by the terms of the Notice to Quit and you have “corrected” the deficiencies, you do not have to move. In some states you may not be able to correct the deficiencies.
If you do not abide by the conditions of the Notice to Quit and you are unable to negotiate further with the landlord, the landlord will probably proceed to sue you in court for eviction. In most states this is called an unlawful detainer action, forcible entry, or ejectment action. All of these are forms of “eviction”. Because these are legal proceedings, they all begin with your being served a summons and complaint notice that you are being sued for eviction. Always read the notice carefully because in some states the time between service of summons and the court hearing is very short. It can be as little as five days.
You should also answer the complaint in writing within the time specified in the notice. If there is any reason why you believe you should not be evicted you must attend the hearing and give your side of the story. Also you should attend the hearing even if you have no defenses just to be sure that the amount of back rent you owe is stated correctly and to learn exactly what will happen and when. If you fail to appear, your landlord will win a judgment by default.
It is very important to remember that unless you answer the complaint on time if required by state law and attend the court hearing, you will probably lose all defenses that you might have to your eviction. Many people are evicted because they failed to read the complaint and summons and failed to meet the time conditions set forth in these documents. Most importantly remember it is always advisable to attend your court hearing. Otherwise the landlord will win a judgment by default.
Defenses to Eviction
Sometimes you may have a valid defense to the eviction proceeding. Remember you must always attend the hearing (or answer the complaint in writing in some states) or you will lose your defense. Some of the most common defenses are:
- Habitability – the Landlord has failed to keep the premises in good repair or properly maintained.
- Eviction Procedure – in most states the landlord must strictly comply with the technical requirements of the eviction law. Failure to do so may cause the petition to be dismissed.
- Acceptance of late payments – if the landlord regularly accepts late payments and then starts the eviction proceeding because of “late pays”, you may have a valid defense if raised at the eviction hearing.
- Retaliatory Eviction – You will probably have a valid defense if your landlord begins eviction proceedings because of your exercise of legal rights.
Remember that these are just a few of the defenses to eviction that may be valid. It is always a good idea to contact a tenant’s group in your city or county for further information on possible additional defenses to eviction, which might be available in your jurisdiction. Remember that attendance at the eviction hearing is usually mandatory in order to inform the court of your defense.
If you lose an eviction case and the court orders an eviction, you still have the right to appeal the ruling to a higher court. Appeals should never be done frivolously and you may have to pay fees. An appeal may delay the eviction date and may allow you to negotiate more time with the landlord.
If you lose the eviction case and lose the appeal (should you choose to appeal), you will be given a date when the sheriff will arrive and forcibly remove you and your family from the property. You should always try to move out before this date. If you do not move, the sheriff can remove you and your belongings and you could face additional fees for the storage of your personal goods, or your personal goods could be left on the street. This depends on the state where you reside. It is always best to move out yourself before being forced out by the sheriff. This can be a very emotionally upsetting event.
If you have no place to go contact community service organizations in your area for assistance. Contact local churches, city or county housing organizations, HUD, United Way, or other housing services for assistance. There are temporary housing programs, especially for
families with children, in most communities that are willing to provide “transitional” housing until such time as you can find a permanent place to live. The important thing to remember is that these agencies need time to assist you, so the sooner you can let them know of your problem, the better the possible solution might be.
Revised January 2016.