Breaking a Lease
Updated November 18, 2010
Tenants break or void long-term leases for two reasons. In the most common scenario, a tenant seeks to break a lease for personal reasons, for example to move to another state. In a second scenario, the tenant must void the lease because the landlord has breached obligations under the lease by refusing to repair, failing to control neighboring tenants, or harassing tenants until they move.
Breaking a Lease for Personal Reasons
Where a tenant must break a lease for personal reasons, the landlord is entitled to recoup lost rent for the remainder of the lease, plus interest. Civil Code § 1951.2. The landlord may also recover reasonable costs to market the unit. Id.
But, the landlord has a duty to mitigate. This means that the landlord must re-let the unit as soon as possible at the same or substantially the same rent. Id.
The burden of proof is on the tenant to show that the landlord did not act in good faith to re-let the unit. Chapple v. Big Bear Super Market No. 3, 108 Cal. App. 3d 867, 876 (1980). Courts will generally find a landlord to be acting in good faith where the new rent is more or less the same as the rent paid by the vacating tenant. Jack Kendall v. Ernest Pestana, Inc., 40 Cal. 3d 488 (1985).
Given that the burden of proof is on the tenant to prove that the landlord did not attempt to re-rent the unit, it is recommended that a tenant take affirmative steps to prove that a landlord is not acting in good faith. A tenant can post the unit anonymously on Craigslist for the same monthly rent and email prospective candidates to the landlord. This creates a record that can be used against a landlord who argues that the unit could not be re-let. In posting an advertisement, tenants should be wary of requesting personal information from prospective tenants. It is advisable to disclose that you are a former tenant helping the landlord rent the unit.
Voiding a Lease When a Landlord Forces a Tenant Out
If a landlord is failing to repair, breaching the covenant of quiet enjoyment or otherwise harassing a tenant out of a unit, the tenant may be entitled to void the lease. It depends on the severity of the living conditions. Where a landlord has failed or refused to repair for many years, the tenant will be able to move-out and sue the landlord under a variety of causes of action.
One of these causes of action is constructive eviction. Constructive eviction occurs when tenants are forced out of a residential unit because of harassment, annoyance or repair issues. The damages for constructive eviction are the market rent for the unit less the contracted for rent (or rent- controlled rent) times the number of years that the tenant reasonably expected to stay in the unit. For example, where a tenant is forced out of a unit where the tenant pays $2,000/month for a rent-controlled apartment worth $3,000/month, the tenant will be allowed to recoup $1,000 for every month the tenant expected to live in the unit. Appraisers and economists are used to calculate the market rental value. At least one court has allowed recovery for twenty years of projected rent. Chacon v. Litke, 181 Cal. App. 4th 1234 (2010). In rent-controlled jurisdictions, this amount may be trebled where a landlord forced a tenant out because the tenant had below market rent.
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