If you’ve been wondering about whether or not you can get out of your lease early and, if so, how, then this post is for you. Before you start considering your options, you should know what kind of tenancy you have.
The Types of Tenancies
All rental agreements can be sorted according to their rental durations.
Term Tenancies (e.g. 1 Year Lease)
The most commonly-offered type of rental agreement in Dane County is the term lease. Term leases are those which have specified start and end dates and recurring rental periods for which rent is to be paid on a regular schedule. You’ll know you’re looking at a term lease if it says the day the lease starts, the day the lease ends, and the day rent is due for each rental period.
Usually term leases run for one year (though it’s totally ok for term leases to extend for only a few months or even a few years) and rent is to be paid within the first 3 to 5 days or so of the start of the month. Do note that the start of the month is not necessarily the 1st, even though that’s fairly standard practice. Also, the rental period doesn’t even have to be monthly. For example, a lease could say that rent payments are due once every other month, for example.
Periodic Tenancies (e.g. Month-to-Month Lease)
Periodic leases do not have a specific end date but they do have recurring rental periods. The type of periodic tenancy - i.e. month-to-month, week-to-week, etc. - is determined by the intent of parties, which is generally (though not always) the interval between rent payments. So, if you pay at the start of a monthly period, that’s a month-to-month periodic tenancy. If you pay at the start of a weekly period, that’s a week-to-week. So on and so forth.
The last kind of rental agreement is a tenancy-at-will. Basically, the tenancy-at-will continues the progression seen from the term to the periodic tenancy; a tenancy-at-will has neither a specific end date nor a recurring rental period. A tenancy-at-will is characterized by some sort of agreement in which the tenant agrees to give to the landlord something (usually other than money) in exchange for housing. For example, the tenant-at-will might agree to periodically perform groundwork for the landlord.
One quick point on work: If you receive housing as part of your job, then you are not a tenant (and therefore not entitled to the rights of a tenant). Any person who receives housing as part of an employment contract is not considered a tenant under Wisconsin State Law (Wis. Stat. 704.01(5)).
So, the kind of tenancy you have will (1) determine how your lease normally ends and (2) impact the various ways your lease can end early. If you’re feeling unsure about what kind of tenancy you have, TRC has a page designed to help you here.
Standard Endings for Tenancies
If you have a term tenancy, the tenancy ends at the date and time specified in the lease. This doesn’t change if you sign a lease renewal or extension. That first lease still ends on the stated day. What happens is that the second tenancy kicks in when the first expires.
Things get a little trickier when it comes to periodic and term tenancies. Remember these kinds of tenancies do not have definite end dates. So, to end a periodic tenancy, either the landlord or tenant has to give 28 days notice in writing to end the tenancy. Note that 28 days is the minimum. In some cases a landlord or tenant may opt for a longer notice; and, in other cases, the rental agreement may require longer notices, such as 60 days. (TRC has a post on how to count days in a notice here.)
Periodic tenancies must also end on the last day of the rental period. Since most periodic tenancies are month-to-month (and start on the first day of the month), the last day of the rental period is then usually the last day of the month. If rent is due on the 15th, then the last day in a period would be the 14th. Applying this condition to rental periods longer than one month is pretty clear. But, let’s say you have a week-to-week tenancy that runs Monday through Friday. What then? Well, both the landlord and tenant are still required to give at least 28 days notice. So, if the landlord decides to give the tenant a notice of non-renewal on the first day of the month, the tenancy would end on the Sunday after 28 days had elapsed.
Ending tenancies-at-will does not require terminating them on the last day of their rental period. (Remember tenancies-at-will don’t have those to begin with!) The tenancy-at-will can be ended on any day as long as sufficient notice is given. (Click here for TRC’s post devoted entirely to notices when ending a tenancy.)
Ending the Lease Early
The ways to end a lease early can be divided into two categories: ways to end the lease when some special circumstances exist and ways to end the lease when special conditions do not exist. We’ll start with the latter.
Ending the Lease: No Special Circumstances Exist
Mutual Agreement to Terminate
The landlord and tenant(s) may mutually agree to end a tenancy at any time without further responsibility by either party. Landlords and tenants might decide to pursue this course for any number of reasons. Maybe the landlord wants to renovate the space and offers to move the tenant into another newly-renovated unit without increasing the rent. Maybe the tenants are experiencing severe disputes and the landlord thinks letting the tenants out of the lease will be easier than working to resolve the issue. Maybe the landlord and the tenant just don’t want a rental agreement anymore.
Whatever the reason, if you and either your landlord or tenant are thinking of mutually terminating the rental agreement, make sure to get it in writing. Also, if there are more than two parties to the lease, make sure to get consent for termination from every party, otherwise the termination does not go into effect. If your landlord asks for payment, you cannot be required to pay more than the landlord's actual and reasonable costs (including lost rent and advertising costs, but not compensation for time spent re-renting the apartment) incurred as a result of the early termination. That said, you may choose to pay more as a way to convince the landlord. TRC has sample mutual termination forms here. You might also consider reviewing TRC’s posts on negotiation and getting things in writing.
Breaking the 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 (and be sure to keep a copy for yourself!) in which you state that you are breaking your lease and when you are doing so. Also, similar to how mutually terminating a lease works, all tenants on the lease must break at the same time. If one tenant refuses to break the lease, then the lease remains in effect. If, for whatever reason, tenants break the lease in phases, then the lease is not broken until the last tenant vacates the unit.
For a more in-depth look at breaking lease, please see here.
Once a tenant breaks their lease, the landlord is required to mitigate damages (Wis. Stat. 704.29). The landlord must make “reasonable efforts” to re-rent the unit as if it had been vacated at the standard end of the tenancy. “Reasonable” efforts are basically those actions that the landlord took to rent the unit in the first place (Wis. Stat. 704.29(2)(a)). So, if the tenant found out about the unit on Craigslist, presumably it would be reasonable for the landlord to post it again after the tenant had vacated it. And, if some prospective tenants express interest in the unit, the landlord cannot try to steer those tenants away. This prohibition does NOT mean that the landlord has to rent out the unit first however (Wis. Stat. 704.29(2)(b)).
If you (as a tenant) think your landlord is making reasonable efforts to mitigate, then you may decide to pay the landlord whatever damages they claim they experienced as a consequence of you vacating early. If you think your landlord is not making reasonable efforts to re-rent the unit, then you may decide not to pay the damages the landlord claims. In response, the landlord may try to recover the money in Small Claims Court. If you sense that things may be headed in this direction, compile whatever evidence on your landlord’s efforts to re-rent you can. For instance, you can pull screens from Craigslist or other similar sites showing that the landlord had yet to post a listing by such-and-such date. You can also drive by to see if the unit is being renovated or otherwise used by the landlord. If so, take a few pictures if possible. (It sounds creepy, but it might save you some money in the long run!) Also, if you find out the price of the unit is going up or that the new lease will come with additional provisions (like forbidding pets or requiring that the tenant now perform yard work), try to grab proof. Significantly altering the rental terms in a way that makes the unit more difficult to rent or makes it less desirable to potential tenants can be a failure to properly mitigate damages.
You could even try to re-rent the apartment yourself, especially if you think the landlord will not try to do so. You can then place ads for the unit, show it to prospective tenants, and even hand out applications (assuming the landlord gives them to you). If the landlord refuses to sign a new lease with similarly qualified potential tenants, remind the landlord that it is their duty to mitigate and that it may be evidence that they are not mitigating if they don't sign the lease.
The upshot of all of this is that, in order for the landlord to recover through Small Claims any damages they incurred as a result of you breaking your lease, the landlord has to show that they made reasonable efforts to re-rent the unit as soon as possible. This is where your compiled evidence comes in: If you can prove that the landlord’s efforts were not reasonable, you may be able to convince a judge that you don’t owe the landlord any money (Wis. Stat. 704.29(3)).
To summarize: You can break your lease. If and when you do break your lease, you are still (potentially!) on the hook for any damages the landlord incurs as a result of you vacating early. And you are on that hook until the landlord re-rents the unit or lease expires (whichever comes sooner). However, in order to recover through Small Claims Court any damages the landlord incurs, the landlord must be able to show that they properly mitigated those damages.
Subletting actually does not end a tenant’s lease. Instead, the tenant is effectively putting out a lease on their lease. So, since subletting does not end the lease, we won’t spend too much time on it. If you’re looking for all you need to know about subletting, please check out TRC’s post on subletting here.
If you check your current (or prospective) lease, you may find that it contains a provision saying that you are prohibited from breaking lease. Alternatively, it may say something to the effect that you must sublet if you would like to vacate the unit early. TRC believes any rental provision which states only subletting is allowed is unenforceable (as it arguably “purport[s] to waive the landlord’s obligation to mitigate damages” (Wis. Stat. 704.44(3m), 2011 Wis. Act 143, Sec. 28). So, since the provision is unenforceable, you can still (according to us!) break your lease. But, now seems like a good time for the reminder: We at TRC are not lawyers and the information contained here and elsewhere on TRC’s site should not be used or construed as legal advice. If you have a rental provision saying that only subletting is allowed and you would like to break your lease, please consult a lawyer to get their take.
Ending the Lease: Special Circumstances Exist
These are more unique cases in which a tenant can get out of their lease with no further obligations to their landlord.
Clauses which Make the Lease Void and Unenforceable
State law and consumer protections have articulated 10 rental provisions such that, if they are included in a lease, make that lease unenforceable (i.e. the state or other regulatory power does not have interest in ensuring that the terms of the lease are fulfilled). A lease being void and unenforceable is a one-way street: The tenant may quit the lease without any consequences, but the landlord cannot terminate the tenancy without the tenant’s consent. Also, it is not necessary for a landlord to have acted (or have tried to act) on an unenforceable rental provision. The provision’s mere presence in the lease makes it unenforceable on its own.
Here are the 10 prohibited rental agreement provisions:
- Allowing a landlord to increase rent, decrease services, bring an action for eviction, refuse to renew, or to threaten any of these actions because a tenant has contacted law enforcement or emergency services for their safety (ATCP 134.08(1).
- Evicting in any other way besides by state law (ATCP 134.08(2)).
- Speeding up rent payments for breaking a rule in the lease or otherwise waiving the landlord’s obligation to mitigate damages (ATCP 134.08(3)). (We’ve seen this one before! It’s part of the foundation for TRC’s position that tenants can break lease.)
- Requiring the tenant to pay the landlord's attorney's fees or costs for any court action related to the rental agreement (ATCP 134.08(4)). NOTE: This does not prevent a landlord (or tenant) from recovering court costs ordered by the court.
- Allowing the landlord to "confess judgment" or speak for you in court about any action or inaction related to the rental agreement (ATCP 134.08(5)).
- Excusing the landlord for liability for property damage or personal injury due to negligent acts or omissions by the landlord (ATCP 134.08(6)).
- Imposing liability on the tenant for personal injury arising from causes beyond their control, property damage caused by natural disasters, or by persons other than the tenant or their guests (ATCP 134.08(7)).
- Waiving responsibility for the landlord to provide premises in habitable condition or maintain the property (ATCP 134.08(8)).
- Allowing the landlord to terminate the tenancy of a tenant based solely on the commission of a crime in or on the rental property, if the tenant, or someone who lawfully resides with the tenant, is the victim of that crime, as defined in Wis. Stat. 950.02(4) (ATCP 134.08(9)).
- Allowing the landlord to terminate the tenancy of a tenant for a crime committed in relation to the rental property and the rental agreement does not include the notice required under Wis. Stat. 704.14 (ATCP 134.08(10)).
If your rental unit becomes unlivable and the landlord cannot make the repairs right away (if at all), then you can choose to move out. If you do decide to move, then you can’t be held liable for rent (or other charges) after the time at which the unit becomes uninhabitable (Wis. Stat. 704.07(4)).
Now, there are a lot of nuances at play when it comes to constructive eviction and TRC has a more expansive post on the topic available here. It is important to repeat here that constructive eviction is a defense the tenant uses in court. So, up to a point, constructive eviction works similarly to breaking lease: The tenant decides to vacate the unit early and lets their landlord know when they are doing so. At that time, the tenant stops making rent and related payments. Where constructive eviction departs from breaking lease is that, if the landlord decides to try to recover any money via a Small Claims Court, the tenant then claims that they do not owe the landlord money because the unit was uninhabitable (as opposed to claiming that the landlord failed to properly mitigate).
Servicemembers' Civil Relief Act
The Servicemembers' Civil Relief Act allows a tenant to end their lease if either (1) they enter military service or (2) if they receive orders to either change station or deploy for 90 days or more. This even applies to situations where the service member has dependents living in the unit or on the lease. For example, if a service member is set to leave behind a partner when they deploy, the partner can also quit the unit without further obligation to the landlord (assuming these protections are sought). Tenants must give written 30 days' notice and a copy of the military orders to the landlord in order to use this act.
The Safe Housing Act
The Safe Housing Act allows victims of domestic violence, sexual assault, stalking, and child abuse to terminate a lease if they feel remaining on the premises puts them at imminent risk of physical harm. There are rules similar to those in the Servicemembers' Civil Relief Act: To end a lease under these laws, tenants with a term lease must write a letter to the landlord saying that they wish to end their lease under Wis. Stat. 704.16 because they and/or their child(ren) face an imminent threat of physical harm. (Note: If you have a periodic lease, you may give notice to terminate your lease for no reason at all. See the above section ‘Periodic Tenancies’ for information on how to end your lease). When giving this notice to their landlord, tenants are to provide a certified copy of at least one piece of accepted documentation. Accepted documentation includes restraining orders, conditions of release, and criminal complaints. Under these limited circumstances, the lease would end as if giving a termination notice for a month-to-month tenancy (Wis. Stat. 704.16, Wis. Stat. 704.16(1)(b)).
The Tenant Has Died
In the event a tenant dies, their lease is terminated either 60 days after the landlord learns of the tenant’s death or when the lease expires, whichever is sooner (Wis. Stat. 704.165). There is a qualification: The lease continues if the deceased has any surviving co-tenants, such as a spouse or roommate. But, in those instances in which the deceased is the only tenant named on the lease, the deceased’s estate is liable for paying rent and related charges for those 60 days (at most). However, if the unit is surrendered by the estate prior to the completion of the 60 days, then the landlord would have to mitigate damages in the same manner as if the lease had been broken.