Can I terminate a signed lease if the tenant requests a change in their start date and refuses to pay prorated rent and move in?

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Can I terminate a signed lease if the tenant requests a change in their start date and refuses to pay prorated rent and move in?

On the day of walk-through tenant claimed the house is dirty and need repair, saying that he will move in only after all works are done. He paid security deposit and 1st month rent but not the 3 weeks prorated rent. He did not take the key. The key is still in the lock box. Now he wants to change the start date to whenever the works are completed and recalculated the prorated rent based on the new start date, which I don’t agree. I have already paid the agent fees of the one month rent since the lease was signed. What are my options now? Can I terminate the lease and keep the security deposit?

Asked on June 22, 2015 under Real Estate Law, Virginia

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

The issue is whether the tenant is right and the house was not ready for rental (e.g. not habitable; or not in move-in condition) or not. If it was ready for rental (even if not in 100% perfect condition) and he did not pay all rent due from the agreed-upon move in date, then he is in breach of  the lease and you should be able to terminate the lease. In that event, you could also keep the deposit to pay unpaid rent.

On the other hand, if the house was not habitable or not ready for rental, then because that is your fault or responsibility (as the landlord) and not the tenant's fault, you, not the tenant, would be in breach of the lease. At the tenant's option, he could either treat the lease as terminated and get all his money, including security deposit, back; or else wait for the rental unit to be ready, but not pay rent until it is.

So the issue is, did you provide a habitable, ready-to-rent space or not?


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