Question: I signed a one-year lease three months ago and just found a great house that I can afford to buy. My rental is very noisy, which makes it difficult to sleep. Also, the yard is really too small for my large dog and it is quite a walk to the closest bus stop for my son to go to school. My landlord is very nice, but the amount we pay for rent is close to what our mortgage would be. Are there agreeable ways to break a lease, or should I just hold off buying a house for nine more months? I have been told that you can find a replacement renter and not lose any money. What are the chances of that happening?
Landlords’ attorney Smith replies:
It sounds to me like the reader has admitted that the real reason for wanting out of the lease is to purchase that home. The noise and dog issues are presented as a pretext for termination of lease. As a landlord attorney, let me warn you that you will have a difficult burden of proof to satisfy the court that the noise levels and your unhappiness with the yard were so substantial as to constitute a constructive eviction. Under the general legal concept of constructive eviction, landlords promise to give you quiet enjoyment in your occupancy of the rental. You’ll have to prove that the noise is both substantial and continuing to have a shot at this theory. The yard issue will not get you anywhere since you had an opportunity to inspect and presumably approved it at the beginning of your occupancy. Consider negotiating with the landlord for a lease-break agreement. It’s conceivable that in a strong rental market, the premises would not be vacant for a substantial period of time following your departure.
Tenants’ attorney Kellman replies:
We see many tenants who need to break their leases. Leases can be broken or cancelled for many reasons. They include the breach of the covenant of quiet enjoyment, misrepresentation by the landlord or the failure of the premises to live up to what you were led to believe you were paying for. Here the noise may be grounds to break the lease under certain conditions. If it is noise within the knowledge or control of the landlord and he/she did not warn you of it or take steps to resolve it, you may win the lease break. However, if it is a natural noise consistent with the local environment that you knew or should have known about (i.e. house in a flight path), you may not be so lucky. There are many other ways to break a lease without resorting to a noise claim. You may facilitate its rental to a replacement tenant or you may negotiate a buyout of the lease. There are several other ways we break leases, which differ depending on the situation. Also, beware that landlords routinely offer their so-called lease-break document for tenants to sign. Unfortunately, most of them are merely documents that confirm you are moving but that you admit responsibility for the balance of the lease. Therefore, you should definitely seek legal advice before breaking any lease or signing any such “agreements” or documents.
Property Manager Griswold replies:
Honesty is always the best policy. Talk to your landlord and tell him/her the true reasons that you would like to break the lease. If it is because you have an opportunity to buy a home, then be upfront. The noise may be a legitimate problem, but it seems like it is only an issue because of your desire to purchase a home. Ideally, the landlord will cut a deal with you where you can leave as soon as he/she has found a replacement tenant. You can actually help by keeping the property clean and ready to show to prospective tenants, as well as referring anyone that you know might qualify. Remember that the landlord does not have to work with you, but most landlords will cooperate when their tenants are truthful and work with them to find a good replacement tenant. Just make sure your new home does not have noise problems and meets your expectations for your pet and your son. Unlike a rental property, when you purchase a home the seller won’t let you give the home back if you are not happy with it!
This column on issues confronting tenants and landlords is written by property manager Robert Griswold, author of “Property Management for Dummies” and co-author of “Real Estate Investing for Dummies,” and San Diego attorneys Steven R. Kellman, director of the Tenant’s Legal Center, and Ted Smith, principal in a firm representing landlords.
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