Breaking Your Lease
Most common types of rental agreement are month-to-month and a fixed term lease, like a year.
Monthly tenancy is only for a month, but automatically renews each month until one or the other gives a notice that it will stop. The tenant can give 30 days’ written notice at any time, to end it. The landlord can give 30 days’ notice for the first year, but must give at least 60 days’ notice after the first year. Because a monthly tenancy is designed in this way, it is not really “breaking the lease” to stop the repeated renewals giving this notice. You are just not renewing it.
A lease is for a fixed term, like a year, and usually does not automatically renew as a lease. The purpose of a lease is to give stability to the parties, a stable income for the landlord and a stable place for the tenant. If you leave at the end of it, you’re not breaking it, in most cases. Time’s up, and you’re gone.
When a lease expires and the landlord continues to accept rent, by law, Civ 1945, it usually converts to a monthly tenancy on the same terms, including the same rent. If you wanted to get out of the agreement after that lease expired, you just have to give the 30-day written notice to end it. At that point, you are not “breaking” the lease, just not renewing it. The landlord can give a 60-day written notice to end it, if it’s been longer than a year since you started renting it.
Purpose versus Legal Reason
Breaking the lease doesn’t have to be a major battle. With the housing shortage as bad as it is, the landlord can easily fill your vacancy and simply agree to it, particularly if you cooperate in showing the place to prospective tenants. Some leases have a penalty of two months’ rent that you can pay to end the lease, although that provision is probably illegal and you can get around it. You may even have a friend who wants to take over your lease, and the landlord can simply agree to that. You probably don’t have a reasonable landlord, which is why you’re reading this.
The general rule is that you can’t “break the lease,” because you promised to stay to the end. It’s the exceptions to that rule that we’re going to discuss, here. Your purpose for breaking the lease may be a completely different one than the legal reason you need to safely do it. For example, you may need to go back East to take case of family members, move in with a boyfriend or girlfriend, or a job transfer, or you just want to move out of the City. That is your purpose, what you’re trying to accomplish.
What you need is a legal reason, so that even if the landlord is jumping up and down yelling, “I don’t permit it! I won’t permit it!” you have the legal right to do so. Here are a few of the easiest ways.
Habitability Defects
In the Repair section of this site, you learned about CC 1942, which gives you the right to repair a habitability defect, like a broken window or clogged drain, and deduct the cost from your next rent check. That same law also gives you the right to just end your lease, instead. You ask the landlord to fix it right away, and when he doesn’t, you announce that you are terminating the tenancy under Civil Code 1942. It’s that easy. Practically every tenant can use this way to break the lease. This applies to monthly agreements as well.
Really, what rental place does not have something wrong? You can download the Habitability Worksheet from below to give you a handy checklist of things to look for. It can be any minor thing, like a missing window screen, an electric outlet when one of the plugs doesn’t work, or you saw a cockroach. It doesn’t matter that the defect doesn’t really bother you at all, only that the defect exists.
A habitability defect doesn’t have to be something broken. Any nuisance is a habitability defect. It is a nuisance if it is hazardous to health, offensive to the senses, or blocking movement. So legal reason to break your lease can be a noisy neighbor, smoke coming into your apartment from downstairs, a bad smell like garbage or sewage, or even someone blocking your parking space. It can be insufficient lighting outside (as a safety hazard), not enough trash bins, trash or debris in the common areas, or any safety hazard like a slippery surface, loose hand rails or trip hazards. It can be a tree limb that is about to fall, or a collapsing fence.
How to do it
The landlord cannot undermine your leaving by fixing things in the last minute. You already decided, and have made arrangements to move. The landlord could have avoided this by inviting you to tell them whenever there is a problem and immediately fixing it, but you probably don’t have that kind of landlord. Why should they fix anything for you when they can threaten to evict you if you dare ask for a decent place to live?
You don’t have to, but should put the notice that you are leaving in writing, with a list of the defects, saying that you are moving under Civil Code 1942, and expect to be out by whatever date. Keep a copy, in case it goes to court, so you can show the judge.
You also want to request a preliminary inspection under Civil Code 1950.5(f), 2 weeks or so before your planned moving. That way, if the landlord tries to retaliate by stealing your deposit, claiming that you “trashed the place”, they can’t deduct from your deposit for anything that they didn’t included in that preliminary inspection list of those proposed deductions. That is all by the book. If you do that, you don’t owe any rent after the day you leave. If you paid a full month’s rent but left before the end of that month, the unused portion becomes part of the security deposit that they have to return to you within 21 days.
Fraud and Deceit
You can break a lease because of the landlord’s fraud or deceit, which is shockingly common.
Fraud is where the landlord lies to you, like making a promise they don’t intend to keep, in order to trick you into signing the rental agreement and paying top dollar rent. For example if the landlord promised to have certain repairs or cleaning done prior to your moving in, but then they don’t, it is fraud. False promise fraud is very common among landlords. “Fraud in the Inducement” to enter into the lease is your basis to cancel the lease, get all your money back, and sue the landlord for all that it cost you, plus punitive damages for trying to get away with it. Why did they lie to you, if not to trick you to pay and sign?
Deceit is like fraud, but instead of lying to you, they just don’t tell you what they are legally obligated to tell you. The law says that there is a special relationship between landlords and tenants, where the landlord must tell you about negative circumstances they know that might keep you from renting the place. For example, if there is construction about to start next door, or it is a high crime area, or building has a mold problem, as well as any habitability defects in your unit, before you sign the agreement, they have to tell you about it. They don’t tell you because, if they did, you would rent elsewhere, or not pay so much, or include special conditions like temporary relocation in a hotel. By not telling you, they are implying that the place is in great shape, and that there is nothing wrong. That’s enough. As with Fraud, you have the right to cancel the lease, get all your money back and sue the landlord for whatever it cost you, and punitive damages.
Illegal Unit
Landlords think they can get away with anything, and among those is making changes to the buildings without permits, inspectors, and all of the public protections. If the building is illegal, the rental agreement for it does not exist, and you are not “breaking” anything by leaving.
You might be renting an illegal unit, like an apartment that is supposed to be a garage, a duplex unit of what is supposed to be a house, or a separate pool house or recreation room converted to an apartment. This is not a defect like a leaking pipe or unsafe stairway. This is something that is not supposed to be there at all, because it was built or modified without required permits. The city building department records section would have the Certificate of Occupancy [they may use a different term], which shows what is supposed to be there, and you can get a copy. They can explain it to you.
Included in this category are extra rooms, or extended rooms, added to the building after it was originally permitted. Usually you can tell that it’s illegal because things look weird or Mickey Moused. That is because no licensed general contractor would risk their license or reputation with the building inspectors over one building by trying to sneak it in. The landlord used handymen and/or day laborers to save money and get it done secretly.
If you live on a property that is, or has, an illegal unit, or something that has been illegally converted, you call the building department to inspect, and cite the place as a “substandard unit”. Get a copy of that citation. Since the unit is illegal, the lease of it is void -there is no lease, and you can move out, sue to get all of your money back, and cost costs and punitive damages, like with fraud and deceit. That applies to you, even if you live in a legal unit, like the house, with the illegally converted garage where someone else lives. That is because the certificate of occupancy applies to the entire property, not each building. So, if what is on the property does not match what the certificate of occupancy says, the whole property is illegal, and both tenants can get all their money back, and sue the landlord.
Destruction
You can also terminate the tenancy based upon destruction, which could be from a fire, a roof collapsing, flooding, a broken foundation, and other things. This is like terminating for uninhabitable conditions, in most cases, but not necessarily. The city building department can “red tag” a place, meaning that you can’t go inside at all, or “yellow tag” it, meaning you can go in get stuff, but you can’t live there. Some rental agreements have a special section to permit termination under these circumstances, but you don’t need that, because the law already permits you to terminate the lease.
Back up Plan
There are other ways to legally break the lease, but what if you have no legal reason? Civil Code §1951.2 says that if you break the lease, you owe all the money for the rest of the lease, MINUS what you can show that landlord could have avoided losing. Even if you do have a legal reason, we recommend that you use this as a back up plan.
If you tell the landlord you’re breaking the lease, you probably get the “Oh, no you don’t!” reply. The landlord thinks that you with you leaving, he can “test the market” to see if he can get even higher rent than you were paying, all they while, charging you full rent until some sucker finally rents it at the higher amount. He may try $1000 more per month, drop it to $500, and accept $200 more, six months later. He thinks you owe him 6 months’ rent while he was gambling in the rental market. Not so, if you do it right.
Here’s how you do it. You put out an ad for your place in Craig’s List at your current rent, features, as a monthly rental, and when available. The landlord says you can’t, because he is advertising it at a higher rate, but he can’t stop you. You find and download a rental application and start showing the place. You explain that you are doing this for the landlord, which is true even if he doesn’t appreciate it. Interested tenants can fill it out, that they agree to pay whatever, you keep a copy, and send the original to the landlord, “Congratulations! I found a replacement!” Voila, you have the proof that the landlord could have avoided losing money by accepting such a tenant, and you’re off the hook for the rest of the lease, even if the landlord rejects them.
You are not subleasing, that is, you are not keeping yourself in the middle, and hoping to get the rent from subtenants to pay the landlord. Nor are you assigning your lease, meaning having the new tenant take over the rest of your lease, where you remain the guarantor for the money due. This is a complete replacement, as though your lease just ended and this is a fresh unrelated applicant to fill the vacancy. You do not need the landlord’s permission, as the lease may say, because this is not either subleasing or assignment. This is just to keep him from losing money, to “mitigate his damages.”.
The law does not require the landlord to accept the new tenant. He can be as fussy as he wants to be in selecting your replacement. That is not the point. If you find a tenant with multiple evictions, low credit score, criminal record, unstable employment, and only able to pay $100 less per month than you were paying under the lease, the landlord could have avoided losing rent by accepting that tenant, and you would only be liable for the $100 monthly difference for the rest of the months in your lease. The landlord wants only millionaires with 800 credit scores, no problems and ready to pay any amount, so he turns your applicants down. Unless it was completely reasonable to reject your applicants, the landlord is a victim of his own greed and misjudgment, and you are free from liability for unpaid rent. He will find out the hard way.
Suing the Landlord
Yet another way to break the lease is to sue the landlord, such as in small claims court, or a major superior court case. You may have had it with the landlord for habitability defects, trespassing into your unit, lying to you about conditions, illegal charges, and other things. You may have held off making a big deal about it while you were living there, so as not to rock the boat and have to defend an eviction. But, now that you are leaving anyway, those reasons are gone, and you have nothing to lose.
Your landlord is not expecting you to sue him, so when it happens, he comes unglued and makes threats. He may file a countersuit, hoping to neutralize your lawsuit against him. If you sue him for things that are not insurable, like intentional bad acts other than contract breaches, he will have to pay for his own lawyer, and not casually hand it over to his insurance company to pay everything. The costs he faces, and his liability to you could be huge. His own lawyer will suggest that he settle, including that the lease is terminated. He certainly does not want to keep as a tenant someone who is suing him, does he? Mission accomplished.
Landlords want to act like they are in control, but they’re not. You are. This is just to give you the advice and confidence that you can get out of your lease, and some of the strategies on how to do it. There are special circumstances and exceptions to the exceptions as in all other areas of law, which we can explain to you when you visit the caltenantlaw.com website and set up a consultation. Don’t stay where you are unhappy. Move on, and leave the landlord in the dust.
