How to break a lease without 60 days notice?

I need to move out of my apartment due to allergic reactions to mildew in the ceiling. However to break my lease I am supposed to give 60 days notice and pay another fee equal to  month’s rent. I would have to pay $2,100 to move out now. I will pay the $700 fee to break the contract if necessary but paying 2 months rent for somewhere I can’t live doesn’t seem right. What can I do?

Asked on October 20, 2011 under Real Estate Law, Georgia

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

In every lease, there is an implied warranty of habitability, which means the landlord must maintain the premises in a habitable condition by complying with local and state housing codes.  The mildew in the ceiling may be a health and safety issue which would constitute a breach of the implied warranty of habitability.  If it is a breach of the implied warranty of habitability, the tenant notifies the landlord as you have done and the landlord is required to respond in a reasonable time by making the necessary repairs.  If the landlord fails to respond within a reasonable time, the tenant has the following remedies for a breach of the implied warranty of habitability: The tenant can make the repairs and deduct the cost from the rent or the tenant can move out and terminate the obligation to pay rent for the balance of the term of the lease or if the tenant stays on the premises, the tenant can withhold rent and defend against eviction.  Another alternative is to sue the landlord for breach of the implied warranty of habitability.

The mildew causing your allergic reaction  would appear to be a breach of the implied warranty of habitability.

Let's say for the sake of discussion that it is not a breach of the implied warranty of habitability and you moved out without giving proper notice, you would only be liable for the rent until the apartment is re-rented (assuming the new tenant is paying the same rent or greater rent than you were paying).  The landlord cannot allow the apartment to remain vacant for the balance of the term of your lease.  The landlord has to mitigate (minimize) damages by making reasonable efforts to find a new tenant.  Reasonable efforts would be based on what other landlords in the area are doing to attract tenants such as posting a sign on the property, advertising in the newspaper or rental guide, etc.  If the landlord did not make reasonable efforts to find another tenant, the landlord's damages would be reduced accordingly.  In other words, the landlord cannot allow the apartment to remain vacant for the balance of the term of your lease to try to hold you liable for the rent for the balance of the term of the lease.  If the landlord finds a new tenant, but the new tenant's rent is less than yours, you would be liable for the difference in rent between what you paid and what the new tenant is paying for the balance of the term of your lease.  Again, the landlord would have to have a valid reason for charging reduced rent such as market conditions; otherwise, the landlord has failed to mitigate damages and the landlord's damages will be reduced accordingly in a lawsuit against you for the rent for the balance of the term of  your lease,

 

 


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.