Tenants get creative when trying to break lease

Question: I am a tenant and have many months remaining on my current lease. I would like to break my lease so I can move to an apartment community across town closer to my school. I know it is not the hot season yet, but if my landlord will not fix the air conditioning unit, can I use that as a reason to break the lease?

Tenants' attorney Kellman replies:

Generally, you are responsible for the rent through the balance of the lease term. If you vacate before the end of the lease, you may be held responsible for the lost rent on the lease and the costs associated with re-renting the dwelling. Leases may be broken (i.e. terminated) in a variety of ways. In some cases, you may move out without owing anything. One way to be relieved of the lease is when the landlord commits a material breach of the contract. Another way is when the dwelling has significant habitability defects and, despite your notice to the landlord, the problems remain unrepaired. Functioning air conditioning is usually considered an amenity and not a habitability requirement unless you live in an area that experiences fairly high temperatures or you have a medical condition requiring a functioning air conditioner. In cases where air conditioning is not a habitability requirement but is merely a comfort issue, you would have a claim for damages for the lack of that amenity but the lease may still remain in force. In those cases, you may wish to avail yourself of the repair-and-deduct remedy where you give notice of the problem and if it is not corrected, you repair it yourself and deduct the cost from the rent. Before moving out on a lease or repairing and deducting, seek legal advice since either action could land you in court.

Landlords' attorney Smith replies:

Kellman correctly points out that, generally speaking and in most areas, a functioning air conditioner is considered an amenity and not an item of habitability in the rental. The law has not raised the necessity of air conditioning to its counterpart ? a heater ?, which is an item of habitability. So, the short answer to your question is that you may not break your lease because of the air conditioning problem. You will be held accountable for the balance of the lease up until the point the landlord successfully re-leases the rental to a qualified replacement tenant. If we assume, for the moment, that air conditioning was an item of habitability, it would still be my opinion that it is not a material breach of the warranty of habitability to rise to the level of constructive eviction. Constructive eviction is a term given to a situation where the premises are so bad that the tenant is allowed to walk away from the lease and consider it null and void without further liability. But, to show constructive eviction as a basis for termination of a lease, you're going to have to present to the court facts of an extreme nature, tantamount to the premises being virtually 100 percent uninhabitable.

Question: I am a tenant with a lease but we are looking to break this contract. There is some legal sounding language about us being responsible for the rent for the entire lease, but I want to know how I can get out of the lease even though there is only one month left in the agreement. Can we break it if the reason is a life-altering situation, such as a child going to college or a parent getting a new job?

Property manager Griswold replies:

No, you cannot unilaterally break your lease just because your circumstances have changed. There are very limited reasons to break a lease unless both parties mutually agree. The language contained in most standardized leases indicate that you are responsible for the balance of the lease subject to reasonable efforts by the landlord to mitigate or minimize your damages by attempting to re-lease your rental unit. Of course, you are responsible for the actual reasonable costs incurred by the landlord and practically speaking with only 30 days left on your lease it is very unlikely that the landlord can get your rental unit ready for occupancy and actually get a new tenant to move in and begin paying rent within that short timeframe. Also, note that the landlord retains the right to market other vacant rental units he/she may have and the landlord is not obligated to place your unit in a higher priority than other vacancies, but he/she must make sure to let prospective tenants know that your rental unit is available.

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.

E-mail your questions to Rental Q&A at rgriswold.inman@retodayradio.com.

Questions should be brief and cannot be answered individually.

Copyright 2005 Inman News