Question: There are numerous large (60 pounds plus) dogs in the apartment complex where I live. However, the complex has a 35-pound pet limit, which it advertises on its Web site and is included as a legal rule on the lease, which all tenants sign. Many of the dogs are extremely loud and are allowed to roam free on the grounds, which can be intimidating. When I signed my lease, I did so believing that the 35-pound limit was enforced. Had I known the complex was overrun with large, noisy and aggressive dogs, I would not have moved here. Management now says, however, that the limit is not a ‘hard and fast’ rule. Can I break my lease based upon the fact that management refuses to enforce its own rules?
Tenant’s attorney Kellman replies:
If all of the requirements of a lease are met and the document is signed, it will be a valid and binding contract. The lease usually dictates the rights and responsibilities of the parties. Since the landlord drafts most residential leases, the lease will contain many rules, conditions and regulations that the tenant must abide by (unless they are illegal or otherwise unenforceable). One rule in your complex limits the weight of pets (keep in mind that service animals are not “pets” and are not subject to this rule). Apparently, there are dogs that violate the weight limit set forth in the leases. Even though you are not a party to the other leases, the law will protect you as a third party beneficiary to those other leases. In other words, you can expect and rely on the enforcement of those rules in all leases, which are meant to benefit you as a resident at that complex. Since those rules are not being enforced, and you probably would not have rented there had you been so informed, you may use that point as a way to try and break the lease. Take caution when breaking leases in that if you simply move out without legal protection, you may be held liable for the balance of the lease term as well as other damages. Therefore, seek legal advice before taking any such lease breaking action.
Question: My friends and I have lived in the house we leased for one year. We’d been there for three months before the lady next door got sick of us and complained to the city about everything we did. Well, two to three days after receiving the warning by mail, our landlord served us with a “three-day notice to quit” (nuisance). That’s exactly what we did–we moved out and surrendered the property. Now he’s telling us we owe him the rent until someone else moves in and that we don’t get out deposit back. Is this legal and if it is or isn’t, what should we proceed to do?
Landlord’s attorney Smith replies:
This situation is seen all too often. By signing the lease, you obligated yourself to a one-year commitment–requiring payment of rent and also compliance with all other lease provisions. By your noise and disturbances, you breached the lease. Under these circumstances, tenant-landlord laws typically state that the landlord can ask you to move. You have the right to dispute the notice and fight the eviction, claiming that the evidence does not support the allegations. If you win the case you will be allowed to stay in possession for the balance of the lease, so long as you continue to comply. In this case, you elected to honor the notice and vacate the premises. Although you have vacated, the lease is not terminated. The court will allow the landlord to recover rent for the balance of the lease under certain conditions. To let you off the hook simply by vacating would give you a windfall and render the one-year lease meaningless. The best approach to this situation is to either contest the eviction case based on the alleged disturbances, or make an agreement with the landlord to break the lease; this agreement would state that you would move out and pay a mutually agreed figure to settle up on the lease.
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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