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Ending Your Lease: Mutual Agreements, Breaking Your Lease or Subletting
Also available as a PDFor en español for easy printing.
Leaving Before Your Lease Is Up
Tenants who need to move out early have three options:
negotiating with the landlord to end the lease early,
breaking the lease, and subletting.
Mutual Agreement to End
The landlord and tenant may mutually agree to end a
tenancy at any time without further responsibility by
either party. The landlord may be willing to sign an early
termination to avoid disputes between tenants, to avoid
court costs of the eviction process, because the tenant
offers to pay a fee, or because the landlord would like to
do work on the apartment. If the tenant has a written
lease, the agreement to terminate must be in writing. Even
if the tenant does not have a written lease, it is still a good
idea to put the agreement to terminate in writing to
protect both parties. Sample mutual termination forms
are available at Tenant Resource Center.
If the lease requires a payment, the tenant cannot be
required to pay more than the landlord's actual and
reasonable loss (including lost rent and advertising costs,
but not compensation for time spent re-renting the
apartment). If the tenant pays a fee to break the lease,
and the landlord re-rents the apartment immediately after
the tenant vacates and with no advertising expenses, the
tenant is entitled to recover the entire fee.
Breaking Your Lease
All tenants may break their leases, even if the landlord
says that subletting is the only option. If you want to
break your lease, write a letter to your landlord (keeping a
copy for yourself) stating that you are breaking your lease
and the date that you are moving out. Remind the
landlord that s/he has a duty to mitigate (lessen) damages
by making efforts to re-rent the apartment as soon as
possible. You will have to pay rent until a new tenant signs
a lease and moves in, but after that you will no longer be
responsible for the apartment, unlike a sublet.
Reasons To Break Your Lease
Contrary to popular belief, there are no provisions in Wisconsin or local laws that permit tenants to break a lease if they buy a house or get a job transfer. It may, however, be possible to negotiate with the landlord to include this type of provision in the original lease agreement.
Mitigation
The landlord has the obligation to mitigate the damages
by trying to find a new tenant. (Wis. Stats. 704.29 (2))
- The landlord must advertise your apartment the same
way s/he normally advertises vacant apartments.
- The landlord must show your apartment to interested
tenants. Although s/he cannot try to steer prospective
tenants away from your apartment to other vacant
apartments, s/he is not required to rent your apartment
first.
- The landlord may charge you the actual costs associated
with re-renting your apartment, but not for time spent.
If the landlord is not trying to mitigate
- Compile evidence such as newspapers in which your
apartment was not advertised but should have been,
statements from people who tried calling about your
apartment, and pictures of renovations in progress. (See
below.)
- Send a letter to your landlord (keeping a copy for
yourself) detailing your evidence of his/her failure to
mitigate, and state that this failure means that you are
no longer obligated to pay rent.
- If the landlord takes you to small claims court for
unpaid rent, you will need to prove that s/he failed to
mitigate or that his/her efforts to mitigate were not
reasonable, so you should keep all evidence and
correspondence relating to the landlord's failure to
mitigate. (Wis. Stat. 704.29 (3))
Proving whether the landlord is trying to mitigate
- Look for ads for your apartment in local newspapers
and rental publications.
- Have a friend call to inquire about vacant apartments to
see if the landlord mentions your unit.
- Find out if your landlord has raised the price of your
apartment or changed the lease (for example, now not
allowing pets or smokers). Significantly altering the
rental terms in a way that makes the unit more difficult
to rent or less desirable to potential tenants can be
failure to properly mitigate damages.
- Stop by to see if the landlord is renovating or using your
apartment.
Re-renting the apartment yourself
This is often the fastest way to find a new tenant,
especially if you are worried that your landlord will not
try to re-rent the apartment.
- Place ads for your apartment and have people call you
directly.
- Show the apartment yourself.
- Give interested people applications (get them from the
landlord).
- Keep names and phone numbers of interested tenants
so you can follow up with them in case the landlord is
trying to keep people from renting the apartment.
Subletting Your Apartment
If you sublet you will still be on the lease, even though
you will no longer be living in the apartment. If the
person you sublet to does not pay the rent or damages the
apartment, you will be financially responsible. Although
subletting can be risky, you may want to sublet if you wish
to return to the same apartment after a time away, have a
specific friend or relative who wants to move in, or feel
that you'll need to offer an incentive, such as reduced
rent, to find someone to move in.
A sample Sublet Agreement Form is available as a PDF.
Issues to consider before subletting
- Landlord Permission. Tenants with year-to-year leases
can sublet without the landlord's permission unless the
lease says otherwise. Check your lease. If you sublet
without the landlord's permission and permission is
required in the written lease, the landlord can evict the
sublessees and possibly hold the sublessor (you) liable
for remaining rent payments and damages.
- Landlord Sublet Procedures. Some landlords have
specific procedures which you must follow for sublet
permission. Some landlords require that you advertise,
show the apartment, and forward interested parties to
them for approval. Some landlords are willing to show
the apartments. Some landlords demand "sublet fees" as
well as the actual cost of ads. If a flat fee is required,
ask in writing for itemized fees, so you know the actual
and reasonable costs. Flat fees over $100 may be illegal.
- Roommate Permission. If you have roommates,
finding an acceptable sublessee may become an issue
with them. All parties on the lease must agree to any
major changes, including adding new tenants. Make sure
that your roommates meet the potential sublessee.
Remind your roommates that they are "jointly and
severally" liable, so if you do not find a sublessee and
do not pay the rent, the landlord may try to evict and/
or collect your rent from them.
- Check out the Possible Sublessee. You will want to
screen potential sublessees carefully, because you can be
ultimately responsible for unpaid rent or apartment
damages. You want to be assured that the sublessee you
find is able to pay the rent and has not had past rental
problems. You may ask for landlord references to find
out if they paid rent late or caused damages in previous
apartments. A landlord may also decide to screen the
potential sublessees him- or herself.
- Sublet Agreements. The single most important step is
using a written sublet agreement. Sample sublet
agreements are available at Tenant Resource Center.
List all terms of the sublet clearly, such as the starting
and ending dates, amount of rent, and how rent will be
paid, the security deposit arrangement, and who will
clean the apartment at the end of the lease or pay
charges to the deposit. Include any particular conditions
such as whether or not the apartment will be furnished,
responsibilities like taking care of plants or pets, and
parking.
- Security Deposits. Because you are ultimately responsible
in a sublet agreement, you may want to collect a
deposit from the sublessee. In the event the landlord
sues the sublessee and/or you, you will at least retain
some of the sublessee's money. When you collect the
deposit, you can keep it yourself and/or arrange with
the landlord in writing for the deposit you paid to be
returned directly to the sublessee. In some cases, the
landlord may charge the sublessee a deposit while trying
to keep the original tenant's deposit. In the cities of
Madison and Fitchburg, this charge is illegal if the total
deposit exceeds one month's rent. Outside the cities of
Madison and Fitchburg, landlords may charge a
sublessee any amount for a deposit. The landlord is
required to account for or return the sublessor's deposit
within 21 days after the sublessee moves out. If the
sublessee pays you directly, you have to return or
account for their deposit within 21 days after they move
out, and the sublessee has the same remedies against
you for illegal deductions, just as if you were the
landlord.
- Check-In. It is wise to have your sublessee complete a
check-in form when they move in to document the
apartment conditions. All tenants must be given at least
7 days after moving in to complete the check-in form.
Have your sublessee note all problems with the apartment
on the form. Then have the sublessee make a copy
of the completed form for him- or herself. Give the
original to the landlord within several days of moving
and keep a copy for your records.
- Check-Out. Make an appointment to check out with
your landlord before the new sublessee moves in. You
also need to fill out a check-out form. Inform your
landlord in writing that you completed your own checkout
form. Write your forwarding address on the sublet
form so that your deposit is returned to the proper
address. Make a copy of the completed check-out form
and give the original to the landlord. If you believe you
may have difficulty getting your deposit back, have a
witness (not a roommate or relative) inspect with you
and sign the completed check out form. You can also
take photos to document the condition of the unit.
Ending Your Lease Vocabulary
Break your lease - End a tenancy early by moving out
without the agreement of the landlord
Mitigate Lessen or minimize - Sublet Make an agreement with a new tenant to assume
responsibility for the lease. If the new tenant fails to fulfil
responsibilities, the original tenant remains responsible.
Sublessor Original tenant
Sublessee New tenant
Jointly and severally liable All co-tenants, sublessors
and sublessees are equally responsible for all terms of the
rental agreement, including for example the full payment
of rent.
Damages The amount of money a tenant or landlord
may be entitled to when the other breaks a lease or other
agreement, including unpaid rent and utilities, and
damages to the apartment
