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.
If you used to have a lease, and now it has gone month-to-month, a simple 30-day notice is all that is required. If you want to lease sooner, then you need to use the advice given here. Also, just because most landlords may give you a hard time about leaving, yours may agree without a hassle. For the landlord who requires a payment of a month or two for the privilege of breaking the lease, you will probably find the alternative routes far more affordable and practical. No sense getting involved in a legal hassle if you can achieve results without it.
In that regard, you may have a situation where the landlord wrongfully evicts you, but you were planning to move, anyway. In that case, you take advantage of the landlord’s mistake, leave under the landlord’s orders, and then sue the landlord for the wrongful eviction, if you wish, having already achieved your primary goal. This can be accomplished with some flexibility to your schedule, such as that you plan to move in 2 months, but the landlord has started the eviction case now, so you just fight the eviction case for two months and then leave. You will need legal help to do that, but know that it is do-able.
It is also possible for you to find a replacement, either as a subtenant renting from you, or as an assignee, who steps into your shoes as the new tenant. That will require the landlord’s permission, which he may reluctantly give, or give on the condition that you pay him, as well as remain liable for the rent. This is another option to consider, but it is not as good for you as Civil Code 1951.2 provides [see below].
You have the right to legally terminate your lease under certain conditions, which almost always exist. If you do that, you are not “breaking” the lease, at all, but legally ending it, regardless of what the lease says. Civil Code 1942 is your ticket. If there is any condition in your place that is “uninhabitable” [see list], you can use that to get out of the lease. You only need to tell the landlord about it [in any way], and have no response within a reasonable time [undefined, but based upon the circumstances]. It can be a trivial thing that you don’t even care about, just so long as it is an “uninhabitable” condition, like an electrical outlet where one socket doesn’t work, or a screen missing a window. Even if your real motivation to move is to take care of your mom back East, you need a legal reason to terminate the lease and get out with minimum hassle.
There are several legal reasons to terminate your lease:
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.
If after going through the above legal reasons, you have no legal reason, you need to “break” your lease. It’s not a legal term, but it distinguishes this situation where you have no legal right to do so from the above situations, where you lawfully terminate your lease. In this case, your primary goal 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.
The usual situation is that you leave, but others prospective tenants have expressed an interest in renting your place, because you placed an ad in Craigs List, or whatever, and have their applications, which you forward to the landlord. The landlord thinks that he’s going to have your guaranteed payment, so he’s NOT going to try to minimize his losses and accept one of your proposed replacements. Instead, he’s going to “test the market,” meaning raising the advertised rent to see if people will pay more for his units. He may say that your proposed tenants didn’t have high credit scores, or wanted to pay less than you, and turn them down. However, under Section 1951.2, his plan backfires, because you’re off the hook to the extent that any of your prospective replacements were willing to pay anything. A replacement with terrible credit and bad rental history who is only willing to pay $100 less than you were would be rejected by your landlord, but since the landlord could have avoided losing all but $100 per month by picking that tenant, you only owe that $100 difference per month for the remaining months of your lease.
Your landlord may attempt to describe your replacements as subtenants or assignees, and say he doesn’t approve of them. However, these are NOT subtenants of yours, nor assignees. They would have a completely different rental agreement with the landlord, and yours would be over. You don’t need his permission. You only need to present them, and enjoy the deduction from your liability to the extent that these people WOULD have paid something. Some tenants in this situation also have a friend contact the landlord posing as a prospective replacement, and the friend can then testify as your lawsuit against the landlord how he handled the situation. This strategy is also advisable to use even if you do have a valid termination, just in case the judge doesn’t agree with your termination, and you have a fall back point to protect you.
If you want to have some fun, making the landlord WANT you to leave can be a hoot. You can do this by starting a tenant association in the building, advising other tenants of their rights. Since most bad landlords hide behind property management companies, fictitious business names and whatever, exposing the real landlord can be effective, including his picture, his house, home, and a map on how to get there, for tenants who want to talk directly, or serve legal papers. Suing the landlord in small claims court is another reason that the landlord would rather have you leave. Calling in the building and health inspectors to cite the property can cause the landlord lots in fines and construction expenses, all because you are still there. The landlord who refused to let you simply leave may even pay you to go, because you cost him too much.