Your Leasing Agreement
Before attempting to be released from a rental agreement, or "break your lease," it is imperative that you fully understand the key elements of your rental agreement. For purposes of this article, these items have been broken down into two categories: non-negotiable and negotiable terms. A non-negotiable term is just that, non-negotiable. You signed an agreement to abide by this term when you signed the rental agreement. A negotiated term, even if not actually changed or altered, may be easier and faster to utilize than a non-negotiated term.
NON-NEGOTIABLE TERMS – A rental agreement is nothing more than a lease or a standardized form offered by the landlord to prospective tenants of its place of business. It is not negotiated, it is signed. The basic elements of a rental agreement most likely appear on the second page of the agreement. The full title/Park name and number and the space and/or home number appear on the top left corner. In the middle, there is usually a line indicating the date the agreement is signed, and an identifying number for the tenant. To its right are boxes setting out the number of people permitted to live in the home, the total rent, the date the first month’s rent is due, and the amount of the entire deposit. Most rental agreements require the first month’s rent plus the full deposit to be submitted with the application. That will all be included under the "total rent" section of the second page of the rental agreement. Near the bottom, on the left side of the agreement, is a spot where the agent of the landlord has signed, presumably as the declarant of the truth of all information that has been filled out in the form. Underneath the spot of the agent’s signature is the line where you, as the tenant, sign and affirm the document to be true and accurate . This signals your acceptance of its terms.
The third page of a typical rental agreement sets out all the terms which you accept and agree to follow by signing the agreement. As noted earlier, rental agreements may differ in some respects depending on the specific situation and the property owner/landlord. Aside from those particular exceptions, the most common terms include the rental amount; the duration of the lease; utilities to be paid by owner/tenant; types of pets allowed; where guests may park overnight or for a period of time; restrictions on subletting your home; restrictions on personal property sales; restrictions on installing air conditioners, and lastly, breaking your lease (usually by showing that you are no longer able to qualify for the space based on income and ability to pay rent).
NEGOTIATED TERMS – Prior to signing any lease, you will meet with an agent of each park to discuss the terms of the rental agreement. Some parks have more flexibility than others and may allow a negotiated term or two. Others do not. For example, if you make a request to the agent of the park and you see them hesitate or show any confusion as to whether the request can be accepted, then it is advisable to ask them to explain why, even suggesting to them that another FB Page poster has had their request accepted and ask them to investigate as to why they cannot do the same.
Another example of a negotiable term is the amount of the rent hold which is usually expressed in dollars. For example, you have a choice between a house or a lot. You are required to submit a 50% hold payment on both the house and the lot. Under these circumstances (and usually only these circumstances), the amount of the rent hold may be negotiable to match the amount of money you have available to spend on a new rental.
When You Can Get A Lease Terminated Early
The common perception is that a tenant can break a lease for a variety of reasons. In fact, the law is much more restrictive in identifying when a tenant has been released from a rental agreement early. These situations include:
Breach by the landlord of obligations associated with the premises
Unsafe living conditions as defined by the State Sanitary Code
Landlord’s Failure to Expend Rents and Profits
Involuntary Military Service
Domestic Violence
Criminal Conviction of Landlord
Notice of Non-Renewal
Voluntary / Negotiated Early Release
Demand from Subtenant
Tenant-in-Sudden-Death-Decline
Each of these situations is outside the scope of this article. If you meet any of the above problems after you sign a lease you may have grounds on which to pursue early release from your rental agreement. When landlords breach their duties or tenants fall victim to a domestic violence situation, a tenant is frequently forced to pursue time-consuming litigation to ultimately cut ties with the apartment they no longer desire to live in.
The best practice is to exercise your option to decline renewal and then pursue another apartment without the encumbrance of a prior rental agreement. A renewal may be signed even if you did not receive notice, providing the landlord does not object. In fact, it is the landlord, as the drafter of the form renewal, who must comply with the law by providing notice if it denies renewal. The law is complicated and evolving and the choice between breaking the lease and abiding by the lease agreement is not easy. When in doubt, consult with legal counsel to protect yourself.
Tenant’s Rights Under The Law
In order to terminate a residential tenancy agreement, there must be a valid reason, and a successful process followed. A residential tenancy agreement is a legally binding contract, so termination is rarely as simple as just giving notice or moving out. Often, the lease agreement itself will contain provisions that specify the process and required notice periods.
Tenants should never assume that they can terminate their tenancy simply because they are not getting along with their housemate or the lease is ending. There are two common examples of breaking a lease agreement without penalty for a tenant: In some jurisdictions, when a tenant gives notice to terminate an agreement, it must give notice in writing to the landlord. In New South Wales, under the Residential Tenancies Act 2010, Section 107, landlords are obliged to provide a prescribed form of termination. Each state and/or territory may have their own rules in this regard.
Any accidental damages caused by tenants may involve the landlord holding bond money in order to make necessary repairs. This is a right provided for by laws in many jurisdictions including New South Wales under the Residential Tenancies Act 2010 Section 206, which specifies that ‘before returning the rental bond, the lessor or agent must deduct any amount to which they are entitled to make good any damage to the residential premises’.
The Art of Negotiating a Release
Once you have an attorney to guide you ("Guide"), had your Guide review your lease and determine that you can avoid paying the re-rent charge, and prepared your notice to vacate, you will next need to contact your landlord to see if you can resolve the situation without having to file a lawsuit. Success at this stage is usually based upon two factors: goodwill and compensation. The goodwill factor always comes first. If your lease has a provision requiring you to pay attorney’s fees, be sure to alert the landlord of your intention to sue if they do not agree to your terms. Sometimes this fact alone will convince an uncooperative landlord that it does not make sense for them to pay several thousand dollars in attorney’s fees to defend a lawsuit. Sometimes though, they really don’t care. Accordingly, let’s focus on the compensation factor. If your landlord accepts your offer to vacate the apartment without paying the re-rent charge, then you have succeeded in avoiding the charge completely. If that is not the case, you can try negotiating on the compensation front, but that will only work if there is genuine goodwill and a desire on both sides to amicably resolve the situation. What does sincere goodwill look like? For one, if your landlord is genuinely interested in a fair resolution of the situation then they will actively participate in the process and try to get it resolved in a way that benefits both sides. However, in the case of the non-genuine landlord, all too often his/her initial response is to deny liability and refuse to make any concessions. At that point, we encourage you to get your lawyer involved as quickly as possible. At the very least, it has been my experience that any unsolicited correspondence from an attorney carries a much heavier "wallop" than the tenant’s own letter, even if signed by an attorney. That tends to get management’s attention which is often analogous to covering your eyes and ears while repeating, "la, la, la . . . I can’t hear you." In effect, your attorney should be ready for battle and at the first sign of any unreasonable response, usually in the form of a set of unreasonable demands, he or she should go on the offensive on your behalf. Just don’t willingly enter into any specific settlement proposals until you have had a chance for your lawyer to discuss with you what is the most sensible tactic to achieve the best outcome as quickly as possible. This is not always about what money you may be out as a result of leaving the apartment early. Sometimes it is really all about you not wanting to have to pay thousands of dollars in legal fees to pursue the claim. It is always best to develop a team approach with your Guide and leave it to him/her to decide the best strategy to beat your landlord down and achieve a just outcome.
Penalties and Costs
Breaking a rental agreement can sometimes prove costly. In most cases, however, it may not cost you a dime. As with most contracts, the main purpose of your relationship with your landlord is to serve and protect the interests of both parties. It contains all the provisions that spell out your obligations and rights, as well as your responsibilities when things go wrong, whether it is your responsibility or the landlord’s. But it also contains provisions that apply when you want to break the contract, an issue that often gives cause for disputes. Therefore, some contracts impose strict conditions, such as prohibiting you from breaking your contract early or imposing penalties and costs.
Knowing the extent of your contract’s restrictions on breaking your lease is critical. While some agreements may be stringent, there is usually scope for negotiation. For example, in some agreements, the payment of a penalty is one of the only ways to get out of an agreement early , while other landlords may be more flexible and may, for instance, consider transferring your contract to another willing tenant to take your place. It is therefore always worthwhile trying to discuss the situation with your landlord. A little diplomacy can go a long way.
Your contract may also stipulate the amount of notice you must give to terminate your contract. Again, this is a provision that is essential to the assurances your landlord has in ensuring his or her investment returns a reasonable yield. Since landlords will expect some contracts to end early, they can estimate their risks and assess what they need to set your rental price at to cover these risks. If you were to short-circuit this process, affect their cash flow, and drop them in the deep end with the obligation of having to find a new tenant on short notice, this can cause trust and relationship issues from the outset.
Documenting the End of a Lease Agreement
Once an agreement has been made, it is important to put everything in writing. How much notice is the landlord giving? When will the tenant have to leave the property? A notice of termination and possession demand for non-payment of rent must be given in writing. If the tenant moves out after the notice is served but while the notice is still in effect, the tenant may be billed as if he or she had not moved out before the date of the notice. Because the notice is in effect, the tenant must continue to pay rent until the date on the notice. It is also suggested that if the landlord offers to release a tenant early from a rental contract, the agreement should be in writing. A release is an agreement that someone will no longer be responsible for some obligation. The landlord may want to get a release from the tenant. The release should be dated and in writing and signed by both parties so there are no questions later on as to whether the person is still responsible under the contract. All the property owners involved in a rental contract should sign the release so that everyone agrees to it. Doing the paperwork will help remind you of the date the agreement was made in case there is a need to use it against the tenant later on. Keep a copy of the signed release for your records.
Alternatives to Breaking Your Lease
There are alternative solutions to breaking a lease that renters may want to pursue.
Sublease
A sublease is essentially a new agreement between a landlord with first right of refusal and a new tenant. Because two people will now be responsible to one landlord, it offers assurance that rent will continue to be paid. Additionally, in a rental agreement, any loss because of damage to property will be split between both parties. Those seeking to end their lease should be aware that they will still be paying for the unit until it is vacated.
Lease Assignment
A lease assignment is similar to a sublease except the original tenant relinquishes his or her right to the property and a new tenant takes over the rental agreement. Before considering a lease assignment, tenants should give their landlord ample notice to fill the vacant space. Tenants will consider what cost responsibilities are associated. The new tenant has his or her own responsibilities under the agreement. Once the new tenant moves in , the original tenant is released from the agreement as long as the new tenant pays the rent on time and adheres to the rules of the lease. However, if the new renter does not comply with the lease conditions, the original tenant is still responsible for the unit and can be held liable.
Finding a Replacement
Renters who do not want to go through the hassle of negotiations with the landlord to terminate an agreement might decide to seek an individual to take over the lease. Finding a replacement will be less of a hassle, but it also involves locating a replacement before the contractually allotted month is over. Both tenant and landlord must agree to the replacement and the agreement requires the same conditions as the original document. When terminating a lease before the period is over, renters should note that once the contract is terminated, it is difficult to restore the agreement.
