Breaking apartment lease

UPDATED: Oct 1, 2022

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Breaking apartment lease

I signed a year lease for an apartment approximately 3 weeks ago and got the keys a week and a half ago. When I first toured the apartment everything was great but in the day I got the keys I noticed a bad smell. I figured it was from being hot and closed up but after a few days of cleaning and airing out it was worse. I contacted the landlord and they came out to find a faulty dump pump in the basement and said they fixed it. However, the smell is still there and isn’t getting better at all. Can I break my lease because of this horrible smell?

Asked on August 8, 2018 under Real Estate Law, Delaware


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

Unfortunatey, the most we can tell you is "maybe." There is something called the "implied warranty of habitability"; this is an obligation, added by law to all leases, that the rental premises must be fit for inhabitation. If the landlord does not correct a condition affecting habitability after notice of it and a reasonable chance to do so, that continuing breach of the implied warranty of habitability can let the tenant terminate the lease without penalty.
The problem is, the test of when a condition is too bad to live with is essentially a subjective one, subject to personal opinion or interpretation: that is, if you break your lease and the landlord sues you for unpaid rent due under the lease, the matter will end up before a judge; the judge will listen to both sides and evaluate whether, in his/her opinion, the condition was so bad as to justify terminating the lease. A smell is not provable by hard evidence the way many other conditions are (for example: a mold condition or large leak can often be photographed); all you will have is your testimony, and against that, the landlord will put his (and maybe that of his super, a contractor, etc.) that he/they smelled little or nothing. So you are starting with a lack of evidence. And then, even if the judge believes you are smelling something foul and the landlord is not correcting it, this judge may or may not believe that a bad smell justifies moving out (i.e. the judge could believe it's just something you live with). So you could be found to have justification to mover out early--but you also might not be.

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 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.

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