TheStreet

Editor's note - None of the following should be considered legal advice. For specific matters and individual circumstances you should consult an attorney or local legal aid.

Maybe you got a new job. Maybe the hot water tap on your kitchen sink is haunted. Maybe the neighbor upstairs has started a cult and you find yourself uncomfortably interested in the holy teachings of her Pomeranian.

Whatever the reason, you really need to get out of the lease on your apartment.

The good news is that this isn't impossible. The bad news is that it might require some heavy lifting. Here's what you need to know if and when you find yourself lighting incense to a velvet painting of a small dog.

State-by-State Differences in Laws

First and foremost, understand that housing is a local issue. Virtually all of the relevant laws will change from state to state and, often, city to city.

This means that you need to do individual research. We can give you general advice, but the specifics will always depend on where you live. Make sure to look up your local laws because when it comes to legal issues (like getting out of a lease) details are everything. We cannot overemphasize this point.

This is all general knowledge. Everything that follows is accurate for most jurisdictions, but your local laws might different from any or all of this.

What Are Your Obligations for a Breach?

Before we get into getting out of your lease it's important to remember that this is a binding contract. Unless your lease says otherwise simply breaking it is not an option. This is known as "unilateral breach" and typical penalties can include:

  • Paying the rent - One way or another, if you walk away from your lease and no one else rents the apartment then you will owe the landlord this money. That's not called getting out of the lease. That's called owing your landlord thousands of dollars. Your landlord will typically collect this rent at the expiration of your lease.
  • Acceleration clauses - Many residential leases come with what's known as an acceleration clause, which means that you owe the entire balance of unpaid rent upon breach. So, if you walk out with six months left on your lease you would owe all six months' worth of rent in one lump sum. The enforceability of an acceleration clause in a residential lease is pretty questionable because it runs up against the landlord's duty to find a new tenant. In most jurisdictions the court will require a landlord to wait until after the lease has run out before collecting the balance of unpaid rent.
  • Credit damage - You will almost certainly take a big hit to your credit score if you walk out on a lease. A small landlord might not have the facilities to report your lease to a credit agency but any larger one will. Between this and the lack of references, breaching your lease will make it much harder to rent an apartment in the future.

What Are Your Rights for a Breach?

Some landlords can be shady. It is extremely common for them to include frightening, punitive sounding clauses in their leases in an effort to scare their tenants. These clauses are almost always illegal. Even in breach you, as the tenant, have rights. The most important include:

  • Attorney's fees - Your lease may include a provision saying that you owe the landlord attorney's fees if they take you to court. This is almost always illegal and/or unenforceable. Judges don't like landlords who try to intimidate tenants out of court.
  • Duty to cover - In case of breach your landlord has a duty to try and find a new tenant. This is called "cover." Once they get a new tenant into the apartment your breach is cut off and you only owe what they lost out on. Landlords don't like doing this. They'd rather simply collect their money from you, and if your landlord makes no effort to cover then you might owe no back rent. Their failure to try and mitigate damages supersedes your breach of lease. Don't count on this though. Even simply listing the apartment on their website fulfills their duty.

Don't breach your lease. Seriously. Walking away from this thing is the absolute worst of your available options. You will owe money, it will haunt your credit, they will give you a lousy reference to future rentals and landlords are not shy about collecting. They keep lawyers on retainer specifically for this purpose.

Subleasing and Assigning

Your first and best option for getting out of a lease is to sublease or assign your lease. In both cases, you hand off rights and responsibility for the apartment to someone else and move out. However, in all possible cases assignment is the better option.

  • Subleasing - When you sublease your apartment you sign a private contract with the incoming tenant. They agree to take over the apartment and you walk away. But a sublease is just a deal between you and this third party. You still hold the lease with your landlord and are ultimately responsible for the rent and any damages.
  • Assignment - With assignment you hand over the apartment entirely. Your landlord is part of this contract and makes a new lease with the new tenant. This is the better option as it absolves you of all responsibility for the apartment. Not all landlords allow a lease assignment and most will charge a fee if they do.
  • Breach replacement - As noted above, your landlord is legally obligated to find a replacement tenant in case of unilateral breach. As a result, if you can find a qualified tenant and your landlord won't allow subleasing or assignment, you might walk away and present the new tenant in your place. This comes with several downsides. You will have a breach of lease on your credit record and in your references history. Your landlord may also reject the new tenant (potentially out of spite), leading to a costly court battle. However, technically your landlord has a duty to cover. If you present them with an equally qualified candidate, you might reduce your legal damages to zero in case of breach.

Your rights to sublease and assign your apartment will differ from jurisdiction to jurisdiction. The first step is to check your lease and see if it has any provisions allowing or banning either option. Then check local laws to see if you have any protected rights (for example, some jurisdictions explicitly protect a tenant's right to reasonably sublease their apartment). Finally, ask your landlord.

And at all times, try to assign your lease before subleasing. Remember that if you sublease to a deadbeat, you will have to pay the rent to your landlord and then take that subtenant to court to get your money back.

Early Termination Provision

The next thing to do is check for early termination rights.

  • Early termination clause - Some landlords will include an early termination clause in their lease. This will typically involve paying the equivalent of a few months' rent in exchange for unilaterally breaking the lease.
  • Early termination rights - Some jurisdictions will allow early termination by law. If this is the case your landlord might well not include it in the lease, but you will nevertheless have the right to break your lease in exchange for a certain fee.

Both cases give you the right to end your lease, but it's typically expensive.

Note that some articles on this subject will advise you to look for or negotiate a "rent-responsible clause." These are marginally useful. Rent-responsible means that you will keep paying rent while your landlord begins looking for a new tenant.

This is the landlord's basic responsibility if you breach your lease. The only advantage to a rent-responsible clause is that it avoids the conflict of unilateral breach.

Checking for Breach by Landlord

On TV, this is the first go-to. The lawyer scans a lease for an illegal provision, or walks around the apartment until he finds a code violation and voila! Lease popped.

In reality this should be your last resort. Attempting to void your lease will often draw a fight from your landlord that ends with you in court and that is, frankly awful. Even lawyers try very hard to avoid this because there's little worse than fighting with the person who controls your home over the space in which you live. Worse still there is the concept of "severability." Even if something is illegal, there's a good chance the court might find that it just diminishes the value of the lease instead of invalidating it altogether.

But if you really need to get out, here's what you should look for:

  • Invalidity of contract - What you are looking for here is a provision of your lease that is illegal and which affects the entire document. Look particularly for illegality around collection of rent or use and occupation of the property. These are fundamental issues to your rights as a tenant, and so might cause a judge to rule that they void the entire lease.
  • Breach of habitability - Your lease is invalid if your apartment fails what's called the "warranty of habitability." In essence, the law requires that any rental housing meet certain standards. Again, the details will vary, but this includes rights like: heat, hot water, structural integrity (i.e. no holes in the wall), absence of mold and fire exits. Check for major failures on the part of your landlord. Basic maintenance issues won't do it, but if the apartment is flawed in a fundamental way you might be able to void your lease altogether.
  • Illegal use of space - Landlords can only enter your space with adequate notice (generally at least 24 hours) and for good reason (such as necessary maintenance or showing to a prospective tenant). If they have been entering your apartment illegally, or if they kept a portion of the space for their own use (such as storing their belongings on leased property,) you have decent grounds to void your lease.

What Special Circumstances Are There for Breaking a Lease?

Various state and local laws protect people in special or vulnerable circumstances. Two are worth calling out particularly:

  • Active duty military: The Servicemembers Civil Relief Act allows members of the military to end their lease if they have received orders that will cause them to relocate for 90 days or more. Essentially, if you have been redeployed you can end your lease.
  • Victims of domestic violence: If you are a victim of domestic violence you may have legal protections. Most states have laws that allow victims to end their lease early. You will have to show proof of the threat. A police report, protective order or restraining order will typically meet this requirement.

Seeking Legal Counsel

There is no better advice we can give you than this: seek professional help.

Housing law is technical, detailed and jurisdiction-specific. Your state and city will have its own set of requirements, and that means your rights will vary.

A local attorney will know the details of how your local laws work. They can help you end your lease in a way that doesn't destroy your chances of renting another apartment or cost tens of thousands of dollars.