Can we just give a30 days notice and walk away or can we be sued for the remaining months onour lease?

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Can we just give a30 days notice and walk away or can we be sued for the remaining months onour lease?

We have a year’s lease but want to get out of it to buy a house. We have only lived in the rental duplex for 4 months and the landlord said he would let us out of our lease and give us our deposit back if he found a tenant as “good” as we were. He has advertised but not put a sign in the yard and has had people come through but not gotten anyone interested yet. Can we just give a thirty days notice (which we did) and walk away or can he sue us for the remaining months on the lease?

Asked on October 6, 2011 under Real Estate Law, Illinois

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

If you have a written lease for a defined term--e.g. one year--then you are liable, or financially responsible, for rent for the entire term of the lease. For example, if you leave 4 months into a 12 month lease, the landlord may sue you for 8 months rent (or more likely: apply your security deposit to the rent you'd owe, then sue you for the balance). You have no right to leave on 30 days notice when you have a lease for a defined term, unless the lease itself gives you that right; and the landlord is under no obligation to let you out of the lease early. Your options: find someone to take over the lease (assign it)--you, as well as the landlord, can look for a new tenant; sublet to someone to cover your costs (you're still on the lease, but you have your own tenant); negotiate with the landlord--maybe if you give him 3 - 4 months rent upfront, he'd agree to let you out of the rest.

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

Answered 9 years ago | Contributor

Giving a thirty day notice now when you have eight months remaining on your one year lease will not prevent you from being liable for the rent for the balance of the term of the lease.

Until the place is re-rented, you will remain liable for the rent; however, the landlord must mitigate (minimize) damages by making reasonable efforts to find another tenant or the landlord's damages will be reduced accordingly.  It could be argued that the landlord is not making reasonable efforts to find another tenant by not posting a sign in the yard if other landlords in the area post signs.  Also, the landlord wanting to find a tenant as "good" as you may be unrealistic and may show not a serious effort to mitigate damages by finding a new tenant.

Once the place is re-rented, your obligation to pay rent ends.  However, if the landlord charges the new tenant less rent than you were paying and has a valid reason for doing so such as market conditions, 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.  If the landlord charges less rent to the new tenant without a valid reason, the landlord is not mitigating damages and you could argue you should not be liable for the disparity in rent for the balance of the term of the lease due to the failure of the landlord to mitigate damages.

 


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