Breaking Future Apartment Lease and Getting Back Deposit

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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A lease is a contract. A contract is binding on both parties once it’s signed—even if the contract is one for future performance, as in a lease which has a future occupancy or commencement date. Once the contract is signed, it can be enforced against either party, and if a party breaches it, that party would be liable for damages if sued. Since the damages if a tenant breaches a lease is the amount of rent the tenant would have paid the landlord under the lease, the tenant could be held liable for the rent for the entire term of the lease.

Once a tenant has leased an apartment or other premises, he or she is responsible for the entire amount of rent owed under the lease, for the whole term. This is the case even if occupancy hasn’t started yet.

As to deposits: a deposit on the apartment or other premises paid to hold the unit would be forfeited if the tenant breached the lease. A security deposit would effectively be forfeited also, since the landlord could apply it against unpaid rent.

If a tenant wanted out of a lease without penalty, it would need for landlord to have done something which either voided or invalidated the lease, or was a material breach justifying the tenant’s termination of the lease. Examples would include:

* Fraud: if the landlord lied about something significant with regard to the premises or the lease

* Uninhabitability: rented premises need to be inhabitable

* The actual rented unit or premises is not available: the landlord cannot simply decide to substitute something different, even if “better”

* The tenant is not getting exactly what he or she contracted for: for example, a tenant rented a house plus a garage, but when he or she tried to move in, the landlord said that the landlord was going to keep using the garage instead

Without some breach or other bad act by the landlord, the tenant will remain obligated for the full term, subject to one other caveat: the landlord has a duty to try to mitigate (reduce) damages by re-renting the premises. If and when the space is re-rented, the tenant is then no longer liable for rent. Success in re-renting is not guaranteed, but the landlord has to at least make a good faith effort to do so. If the landlord does not at least try, a court might not allow him or her to collect rent for the whole term.

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