Mission Impossible: Try Breaking a Tenant's Lease

Robert S. Griswold | Steven R. Kellman | Ted Smith
10-September-2000 Sunday

This column on issues confronting renters and landlords is written by Counselor of Real Estate and Certified Property Manager Robert Griswold, host of Real Estate Today! with Robert Griswold (10 a.m. Saturdays on AM1130 - KSDO radio, or on the Internet at www.retodayradio.com), and by attorneys Steven R. Kellman, director of the Tenants' Legal Center, and Ted Smith, principal in a law firm representing landlords.

QUESTION My husband is affiliated with the federal government here in
Southern California. His current job is classified as "Mission Essential"
and he has been in this capacity for over 10 years. To our delight, he is
being transferred back to a new position that is classified as "Nonmission
Essential" close to our original home in Northern California. This new
position will also not require any more moving.

Our home in Northern California is being rented. The current lease goes
from June 30, 2000, to June 30, 2001. The renters have paid their rent on
time and they have not created any problems.

My husband was given his military orders just three days ago. We had no
idea that this move would take place. We knew that we would be moving back next year, but things have obviously changed. We want to move back into our home as it's been nine years and we are very excited about being able to return.

Upon notifying our property manager of the current situation she refused to
discuss moving the tenants out and ended her conversation with "I handle
the legal matters for this office and this office is not breaking the
lease." What can I do?

ANSWER Griswold: You must honor the tenant's lease. Based on the facts that you present, I see no circumstances that would give you any legal right to terminate a valid and binding lease with your tenants. The fact that your
husband is in the military and he has a transfer to either a "Mission
Essential" or a "Nonmission Essential" position has no bearing on the
rights of the parties under the valid lease agreement. Even if you sold the
property, the lease is still in place and a new owner cannot force your
tenant to leave.

You may want to consider buying the tenants out of the lease or rent
another home/apartment until the lease expires. In hindsight, clearly you
should have put a clause in the lease that would have given you the ability
to terminate the lease if you wanted to move back in yourself under these
or similar circumstances. This clause also would have spelled out the terms of such a possibility such as required notice and any compensation due the tenants.

By the way, the "military clause" is often misunderstood and does not
automatically allow military personnel out of leases just because they have military orders. You can't have your cake and eat it too with having a
long-term lease (either as the tenant or the landlord) and then tear it up
just because your situation changes.

That is why it is better to use a month-to-month agreement if there is ever
any uncertainty about the length of a particular tenancy. Be patient and be
thankful that moving is soon going to be a distant memory. You can also be
glad that you have a good tenant that is paying the rent timely and taking
good care of your home. That is every landlord's goal.

Nuisance options

What must a landlord do to abate a nuisance, or at least determine if one
exists after receiving both verbal and subsequent written notification that
the nuisance exists? Can I vacate my apartment and in essence void an
existing lease without penalty if the landlord takes no action to abate the
nuisance?

Smith: You need to stay put. California tenants are reminded that their
landlords cannot assure pristine quietness in a multihousing apartment
environment. I see no facts in your inquiry that lead me to conclude you
can legally walk away from this lease based on the proverbial "nuisance."

Only in a case of extreme conditions -- controllable by the apartment
manager -- could you create a case for termination of your lease based on
the neighboring nuisance.

Kellman: You may not need to stay put. In fact, you may be able to move out and hold the landlord liable for your damages. California law generally defines a nuisance as something that is injurious to health, involves illegal drug sales, or is something which is significantly indecent or offensive.

Many acts that may be bothersome may not amount to a legal nuisance. When they do, however, you do have rights. If the activity is so severe as to render your unit uninhabitable, you should promptly notify the landlord, in writing, of the problem and ask that it be resolved.

If the nuisance activity is within the control of the landlord, he/she must
take action to stop the improper conduct. If no action is taken within a
reasonable time, the law may allows you vacate the premises and be relieved of any obligations to pay more rent on the lease.

Further, you may be entitled to moving costs and other damages. Seek legal advice before moving out prior to the expiration of any lease.

Please release me

I want to get out of a lease that is valid until the end of October and am
prohibited from subletting. The property management company verbally agreed to break my lease if I found an acceptable tenant.

I found two prospective tenants and had them fill out an application at the
property management company. The property management company called me a day later to inform me that they would not allow me to break the lease. They verbally authorized me to sublet and asked me to pick up the
applications.

I asked for written authority to sublet and they have failed to do so. Do I
have any legal means to break the lease without negatively affecting my
credit?

Kellman: First of all, you should have the lease reviewed by an attorney to
confirm that it is a valid lease and binding through October. Many times
rental agreements appear to be binding leases for a specified term when
they are actually not binding for that term.

Some are even month-to-month agreements regardless of a stated termination date. This may be especially true if the parties have written in custom language onto a pre-printed lease form that could then materially change that lease.

If the lease is a valid one, you can still get out of it. One way is to
have replacement tenants to take over your lease rent obligations since a
landlord may not refuse to re-rent the unit just to continue to hold you
responsible.

In your case, you presented replacement tenants with verbal permission of
the landlord. While verbal permission is nice, it is not binding unless you
can prove the validity of that permission to the satisfaction of a court.
Therefore, if you want to sublet, you should get that permission in
writing.

If you cannot get the cooperation of the landlord, you may still move out
with some measure of protection if you give written advance notice to the
landlord of your move-out date including certain other legal language
depending on the circumstances. He/she will then be obligated to try and
re-rent the unit.

Your credit should not be affected unless a lawsuit is filed or you are put
in collections for unpaid rent.

Smith: Come on Steve, get real. As the landlord's attorney, I beg to
differ. The tenant will be held responsible for the balance of the lease
term -- whether he lives there or not.

IF YOU'RE A TENANT OR LANDLORD, the authors stand ready to answer your questions in this column, although letters cannot be answered individually. Write them at: Rental Roundtable, Homes Section, San Diego Union-Tribune, P.O. Box 120191, San Diego, CA, 92112-0191. Or you may e-mail them at rgriswold.sdut@retodayradio.com

Copyright Union-Tribune Publishing Co.

Back to 2000 Rental Roundtable Index

Robert Griswold and the Real Estate Today! radio show strongly support the intent and the letter of all federal and state fair housing laws. As a reminder to all owners and managers of real estate, note that all real estate advertised is subject to the Federal Fair Housing Act, which makes it illegal to advertise "any preference, limitation, discrimination because of race, color, national origin or ancestry, religion, sex, physical disability, or familial status, or intention to make any such preference, limitation or discrimination." Additional state and/or local fair housing laws may also apply. Be sure to inform all persons that all dwellings offered or advertised are on an equal opportunity basis.

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Revised and Updated - Wednesday, April 26, 2006

Robert S. Griswold, CRE, CPM, CCIM, PCAM, GRI, ARM
Griswold Corporate Center
Griswold Real Estate Management, Inc.
5703 Oberlin Drive, Suite 300
San Diego, CA 92121-1743
Phone: (858) 597-6100
Fax: (858) 597-6161
Email: rgriswold.ret@retodayradio.com