If a landlord breaches a provision of a lease, itthe lease thenconsidered to be terminated?

Our lease included the landlord to pay HOA fees. She did not over the first year of the lease, thus keeping us from using the pool facilities. Now she is caught up on payments. Can I consider her prior lateness as breaking the lease? Can I then rightfully walk away from the lease with no penalty?

Asked on March 31, 2011 under Real Estate Law, Virginia

Answers:

MD, Member, California Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Generally, before getting into the details of your particular landlord tenant lease issue, a lease is a contract. When a contract is materially breached, not simply breached regarding a non-material provision, then the contract is considered void or voidable depending on the type of breach and the laws regarding the same. This then may automatically or by court order terminate your requirements under the lease as the tenant. HOA fees may have prevented you from using the pool facilities and if that was a material term of your lease, you could have paid them and then deducted it from your rent. If she is now caught up, her prior breach was waived by you and therefore, you probably won't be able to walk away now from the lease. You can ask her to surrender the lease so you can walk away without penalty and if she agrees, she needs to give you an accounting of the amount taken from your security for things like cleaning and repair. 


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