Harvard Law School
M.A. Columbia University
B.A. Yale University
Mediator, Judge Pro-Tem
Certified Family Law Specialist
licensed by the State Bar of California
Stan is a member of the
San Diego North County Bar Association .
Licensed to practice in California, Maryland, Washington D.C., & Georgia
How to get out of a Lease?
Breaking a lease seems to be a fery popular question on the mind of renters. I've heard that question many times for loads of personal reasons.My mother is ill and I must move back home to care for her - No sympothy here.I've been transferred by my employer to another city - No.I've decided the rent is too high - Definitely Not.My boyfriend and I rented the place together, and he's left for parts unknown - No Also.I've lost my job and can't pay - Not a Reason.A lease is a contract. You pay rent in exchange for the right to occupy the premises for a period of time, called the term. You can leave during the term if you want to, but you'll still owe the rent until the term expires. Unless you're renting in Lalaland, your lease doesn't contain any provisions allowing you to end it because of changes in your life. There are really no good reasons for breaking a lease according to the law.
Breaking a Lease"Can I break my lease?" or "how to get out of a lease?" are not the right questions. The right question is, what will excuse my obligation to pay the rent? And the basic answer is, a failure of your landlord to keep the promises he made in your lease. If you actually read your lease, you will probably have a difficult time finding any promise by your landlord to do anything. There's a reason for this. In merry old England, a landlord's only obligation was to provide a tenant with possession. You took the premises as you found it, the landlord had no obligation to maintain it while you were in possession, and at the end of the term you had to give it back in the condition it was in at the beginning, reasonable wear and tear excepted. The landlord's only promise was to leave the tenant in "quiet enjoyment" of the premises, and it went without saying.
As a result, old leases contained little more than a promise by the tenant to pay the rent for the term, and a list of promises by the tenant to refrain from damaging the premises. Because leases are generally written by landlords, and residential tenants have little bargaining power, residential leases still read that way. The landlord's promises have been imposed as legal obligations by legislation or judicial fiat, so they're not in the lease. Instead they're in the law books. Some day the legislature may get around to requiring residential leases to list the landlord's obligations, but it hasn't done so yet.
The landlord's modern obligations fall into two categories. The first is eviction, and the second is habitability. The landlord is obligated to evict the tenant only in strict accordance with the unlawful detainer rules, which provide the tenant with written notice of the tenant's default (usually the 'three day notice for failure to pay rent'), the opportunity to cure the default, the ability to force the landlord to file a lawsuit to establish the default in court, and the opportunity to show the judge that no default has in fact occurred. The unlawful detainer rules also prohibit the landlord himself from dispossessing the tenant. The tenant can only be dispossessed (i.e., kicked out) by the Sheriff.
The landlord is also obligated to deliver and maintain the premises in habitable condition, and there is now a statutory definition of habitability. Uninhabitability can be a defense to an unlawful detainer proceeding based on nonpayment of rent. However, if the tenant's claim of ininhabitability is based on a failure of the landlord to make repairs, the defense cannot be invoked unless the failure continues unrepaired for 60 days after notice to the landlord by the tenant. Furthermore, the tenant will still be required to pay a reasonable amount of rent to avoid eviction. Using the uninhabitability defense successfully is difficult. Tenants should not embark upon a rent strike based on the landlord's failure to make repairs without a thorough understanding of the defense and its limitations.
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