Breaking a Lease: For Tenants

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There comes a point in every tenant's life when they start to discover urges. Urges to leave their contract, to get out of their legal obligation before it's over, and sometimes before it's even begun. These urges are normal in the life of the tenant, even though they feel scary at the time.

All joking aside, I've compiled our once-and-for-all list of steps that tenants should consider when attempting to break a lease.

1. Only Subletting Allowed? Many times, the first thing that a tenant hears about breaking a lease is that, according to the landlord, they are only allowed to sublet. It isn't legal for subletting to be the only option.* Subletting is often a bad choice for tenants (you remain on the lease, so you are financially responsible for the person who you are subletting to), but can sometimes make sense (if the sublettor is a friend, or if you want to come back to the apartment when they are done subletting). So, you should know that you have choices beyond subletting.

Action Item for Step #1: Check to see if there is something written into your lease saying that subletting is the only option. If a landlord says, in the lease, that they will only allow subletting and will not allow tenants to break their lease, then we believe that this is an illegal lease clause. Here's what you could do:

Is there something in writing saying that you can't break your lease?
Is there something in writing saying that you have to follow rules and regulations, and then in your rules and regulations, what does it say about subletting? Does it mention mitigation at all?
Is there something in writing that says your only option is to sublet?
You can ask your landlord, "can you please show me your policy about subletting?"
Write a letter to your landlord saying that you are canceling your lease due to this illegal lease clause. Before doing so, you may want to consult an attorney.**

2. Check to see if any of these apply to you: There are reasons that someone can end a lease before that lease is over, with no requirement of ongoing responsibility. Those situations are:

You are the survivor of domestic abuse, and you are invoking the Safe Housing Act. More info here.
You or the primary breadwinner of your household is being deployed/reassigned in the course of duty within the armed forces, then you can invoke the Servicemember Civil Relief Act. If so, the military provides support for breaking a lease. Consult your armed forces support staff. A good explanation, and links to the act itself are available here.
Your lease contains an illegal lease clause. An explanation of all those clauses is on this page. Please click through to the actual laws if you think any apply to you, to be extra sure about the wording. If one does apply, write a letter to your landlord. Here is a sample letter. You may want to consult an attorney.**

3. Mutual Agreement to Terminate lease. If you don't find a way to void your lease in Steps #1 and #2, then you can always try to make it rewarding for the landlord to terminate your lease. If you and your landlord (or an agent of your landlord) come to an agreement to end a contract, and you put that agreement in writing, then that's a perfectly legitimate way to terminate a lease. All of the parties on the lease would need to sign that new termination agreement, in order for it to be valid. The landlord doesn't have to choose to sign, but it might be worth it for them to do so.

Action Item for Step #3: This all works best as a conversation.

Look over our previous post on negotiation.
Figure out what your leverage is - what are you offering? What are you threatening? Threats tend not to make for good resolutions, but may be worthwhile. (Ideas include: landlord can keep your entire security deposit, you can pay an extra $___, if you go through the process of checking up on their mitigation it'll take a significant amount of their time that they could avoid, if you were to stay in the apartment then you'd be forced to call the building inspector who would then require expensive repairs, etc)
In Step #7 of those negotiation tips, when you are saying your idea of a solution, say that you'd like to terminate this lease now, and that you'd like to figure out what would make it worth it for the landlord to do so. Perhaps offer some of the ideas you thought of as leverage - things that you have to offer.
Get it in writing that moment. Take at least 2 copies of a blank "Termination of Tenancy by Mutual Agreement" form. Make sure you walk out with a signed copy if you come to an agreement. Everyone who is on the lease (all tenants, a representative of the landlord), must sign a we-are-canceling-our-lease type document before it'll be considered valid.

4. Break Lease. If Steps #1-4 don't work, then you always have the right to break your lease. This means that you'll move out (or never move in, in the first place), and the landlord will have to go through normal efforts to re-rent the property. You might end up on the hook for rent until the landlord is able to find a new tenant for the property.

Action Item for Step #4:

Send a letter saying that you will be breaking your lease. Sample letter here.
Send the letter through registered mail, OR email it to the landlord, and put it in regular mail as well.
Keep a copy for your files.
Make sure to move out on the date specified, or write another letter with your new move-out date.

5. Finding New Tenants (Mitigation). The landlord is legally bound to make the rental unit available to prospective tenants. However, if the landlord doesn't take correct action, then you'll need to show why the steps they took to re-rent your unit weren't reasonable. The upshot is, you need to keep track of the landlord's efforts to find a new tenant, if you don't want to owe all those months of rent.

Action Item for Step #5:

If you put up an ad for the unit (i.e., Craigslist), put in your own contact information. Then forward those inquiries to the landlord. This allows you to follow up with the folks who were looking for housing, to see if the landlord acted appropriately.
Drive by (or have a friend go by) every once in a while, to double check that no one is living in the unit, and also that big repairs aren't taking place.
Keep notes about the landlord's ads (printouts in rental folders, say).
See other recommendations on our section on mitigation in the Ending Your Lease page.

6. Deal with the Money. Once a new tenant is found for the unit, the lease they sign shouldn't have you anywhere on it - it should be a brand new lease for the unit. At the point where this person begins their tenancy, they are on the hook for the rent, not you. At the point that this new contract begins, it might be that you agree with how much you owe, and want to set up a payment plan. It might be that you disagree, and need to argue your case in Small Claims Court.

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Where people get tripped up:

The landlord can charge you for the difference in price if they weren't able to rent it at the original price. (For example, if you signed a lease for $800/mo, and they rerented the property for $700/mo for a year, then you could end up being asked to pay $1200, the difference in price.) If you think that's unreasonable, you'll need to show that the landlord could have rented it at the original price ("here, look at all these people willing to pay that amount"), and possibly argue that in Small Claims Court, if you and your landlord aren't able to come to agreement.
Your landlord is allowed to charge advertising costs.
Your landlord is not allowed to charge for their time. See the second note at the bottom of Wis. Stat. 704.29.
If landlords don't normally take many steps to rent out their properties, then that's all they have to do when mitigating damages. They don't have to go above and beyond their normal level.
This is probably not a very useful post if you are a month-to-month tenant. If you are a month-to-month tenant, then you simply need to terminate your tenancy with a non-renewal notice. Those are available here.
Sometimes folks miscommunicate because "breaking a lease" can mean many things in regular conversation. If you are confused, ask if the other person means terminating the lease, canceling the lease, voiding the lease, subletting, or finding a new tenant to start a new lease on the property. Always get agreements in writing, so that if there is confusion later, you'll have evidence of what your agreement meant at the time.
The landlord doesn't have to make your unit available before their comparable units (so, if they have a bunch of 2-bedrooms in the same building to rent out, they can show theirs before your 2-bedroom). However, they do have to make your unit available. If someone asks about the specifics of your unit, ("is #305 available?" "I'd like a 2-bedroom that is on the second floor or above, with windows that face North"), then your unit must be identified as available.

Other resources:

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* Why is it not legal for subletting to be the only option? ATCP 134.08(3) says that landlords cannot waive their obligation to mitigate. So, landlords HAVE to mitigate, which means that tenants always have the option of breaking their lease, whether or not the landlord thinks it's a good plan, and then landlords must work to find new tenants as they usually work to find new tenants.

** We are not attorneys! We can't tell you if a clause in your lease would qualify as an illegal lease clause. We can tell you what the law is, and if we see reason why your logic might be faulty. If you want to find out how successful you will be arguing something in court (such as an illegal lease clause), then that is a great question for an attorney.

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