Learn what landlords may (and cannot) do when renters leave before the lease expires.
The tenant moves out; the landlord and tenant sign a new lease with the same or different terms; the tenant stays in the rental with the landlord’s approval, creating a new tenancy (in most states, this creates a month-to-month tenancy with the same terms and conditions of the old lease); or the tenant stays in the rental despite the landlord’s desire to evict the tenant, forcing the landlord to initiate eviction proceedings.
However, sometimes you can’t remain in your rental until the conclusion of your contract because of an unforeseen incident. If you’re lucky, your landlord will agree to let you go—a response that is most likely if your landlord is a decent person, there is a scarcity of rental housing, and there are hordes of eager applicants—or, ironically, if the landlord considers you a pain in the neck and would be delighted to say good-bye. If your landlord agrees to let you out of your lease early, be sure to have the arrangement in writing.
But what if you don’t have your landlord’s formal permission to leave? It varies, as with many legal answers—your state’s legislation may limit what your landlord may do if you leave before the lease expires. Also, the state of the local rental market may have an impact on what happens after you break your lease—if there are a lot of rentals on the market, your landlord may be unable to rerent, and you may be obligated to pay the whole remaining let.
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When a tenant breaches a lease, most landlords must attempt to rerent the property.
Let’s start with the fundamentals: Your lease is a legal agreement that requires you to pay rent for the full duration. The fact that you pay in monthly installments does not affect the fact that you owe the complete amount to the landlord. So, what’s to stop the landlord from suing you for the remaining months’ rent if you leave early?
Fortunately, landlords in most places cannot just sit around and wait for the term to expire before suing you for the rent owed after you departed. Rather, landlords must take reasonable measures to rerent your old residence and, if successful, apply let earned from the new renter to your debt. This is known as the landlord’s responsibility to reduce damages in legalese. Check your state’s law on the landlord’s responsibility to rerent before making the move (that is, to mitigate damages). This tenant-friendly regulation, however, has certain limitations:
Landlords may sometimes make renters liable for the expenses of advertising and exhibiting the apartment.
Landlords must take reasonable, not heroic, efforts to evict tenants. Landlords are not required to give a unit particular consideration in order to rerent it, nor are they required to reduce the let for the unit.
Landlords are not required to accept each candidate who comes through the door. Instead, landlords seeking to limit their losses merely need to utilize the same application criteria they did when renting to the initial tenant. Still, you may significantly improve the situation by providing your landlord with a new renter who has the same excellent credit and rental history as you (or better).
Unfortunately, many landlords are ignorant of their need to rerent to the leaving tenant. Even landlords who are aware of the regulation find it difficult to accept that they must make an attempt to lessen the financial blow to someone who has broken their contract. Some landlords will retain the security deposit (at the very least) and may even send a threatening letter demanding the remainder of the rent. If this describes your experience, continue reading.
When Your Landlord Fails to Mitigate Damages
Expect to lose a month’s rent if you break your lease and leave. Even though your landlord is required by law to mitigate, most courts award landlords one month’s rent as damages, regardless of how soon they advertised and showed the unit—or how quickly they could have leased it if they had tried. Your landlord will most likely deduct this month’s damages from your security deposit.
But being asked to pay the remainder of your lease’s rent is something altogether else. If your landlord sends you a letter requesting the remainder owing on your lease, react politely and cite your state’s legislation. This may cause your landlord to reconsider sitting idle and waiting to collect rent from you for an empty unit. As a template for your letter, you may use the Sample Letter Alerting Landlord to the Duty to Mitigate, which is provided below.
But what if your letter fails to create the intended outcome? You may have to go to court. Your previous landlord may sue you for the rent owed from the moment you moved out until the conclusion of the lease, or you may seek to recover unjustified deductions from your security deposit.
If you or your landlord sues, you’ll need evidence showing the landlord failed to mitigate to back up your case. Collect proof of the landlord’s attempts (or lack thereof) to rerent your prior apartment after you quit the tenancy. Check Craigslist and rental advertisements for a month or so to see whether the landlord advertised, showed the unit (ask the neighbors), leased similar units but not yours, or rented the flat and is now trying to double-dip. In certain places, if you wind up in court claiming that the landlord failed to take reasonable measures to rerent, you cannot sit back and wait for the landlord to present evidence that he actively attempted to rerent. Instead, you will have to provide evidence of his laziness.
Example Letter Notifying Landlord of Duty to Mitigate
21st of June, 20xx
90 Maple Avenue, Monroe, CA 90000 Bill C. Lecter
To Mr. Lecter:
I leased your Monroe apartment at 78 Oak Street till recently. Unfortunately, a work relocation forced me to relocate to Harding, some 100 miles away. As I said in late May, I was forced to terminate my year-long lease on June 1, 20xx. The lease was up in six months. I departed with no outstanding rent for the period I stayed there.
I was unhappy to read your letter dated June 18, 20xx, in which you said that you want me to pay you for the next six months’ rent. You said that you would retain my full security deposit (two months’ rent) and that I would be responsible for the remaining four months’ rent.
I’d like to draw your attention to California Civil Code Section 1951.2, which compels a landlord to make reasonable attempts to rerent a property if a tenant breaches a lease. As you know, rentals are rare in our town, and I believe you could rerent my excellent apartment rather soon. While I am happy to cover one month of rent while you prepare, promote, and show the unit, I am not willing to pay further rent on an apartment that you have purposefully kept unoccupied.
Please submit a check for $[____] [specify amount] to the address below my signature by July 15 [specify response date].
209-555-4567 Tom Tenant 23 Seventh Avenue Harding, CA 90000
Reasons to Break a Lease That Are Legally Justifiable
The preceding section applies to circumstances in which you have no legally valid cause to leave. However, the law acknowledges that renters may have legitimate reasons for leaving a property before their contract expires. These are some examples:
Eviction that is constructive. Failure to maintain fit and livable dwelling by a landlord (called a violation of the “implied promise of habitability”) may be a legally acceptable basis for leaving. The legal phrase for needing to leave under these conditions is “constructive eviction,” which indicates that the landlord has effectively evicted you by providing unlivable accommodation. Consider visiting a local landlord-tenant attorney before moving out if you suspect you have been constructively evicted—some jurisdictions do not recognize constructive eviction or only allow a tenant to terminate a contract under severe or specified circumstances.
A violation of quiet (or peaceful) enjoyment. If a landlord substantially interferes with (or enables someone to interfere with) the tenant’s enjoyment of the rental, the tenant may have justification for breaking the lease. This right to “quiet enjoyment” can encompass a wide range of landlord behaviors, such as entering the rental without providing adequate notice to the tenant, allowing illegal activity on the premises, or ignoring repeated complaints about poor behavior by other tenants (over whom the landlord has control). Again, if you think your landlord has infringed on your right to peaceful enjoyment of your property, consider contacting with a local landlord-tenant attorney before you leave.
Service in the Armed Forces. Tenants who join active military duty have the ability to terminate their lease without penalty in all states. Tenants who need to terminate their lease due to active military duty must notify their landlord and provide a copy of their orders. A month-to-month lease will expire 30 days after the next due date of rent if the landlord gets notice. The tenancy will expire on the last day of the month following the month in which the notice is provided in the case of a lease.
Other Motives. A few state statutes identify other grounds that enable tenants to break a lease, such as employment relocation, family health concerns, or being a victim of domestic abuse. Whether you have a solid cause for a sudden relocation, check your state law on landlord’s responsibility to rerent to determine if you are still obligated to pay rent for the remainder of the lease period.