How to get out of an apartment lease if the landlord broke the contract?

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How to get out of an apartment lease if the landlord broke the contract?

I am have a contract with my university dorms. I have been trying to get out of it. The contract is 10 months; I have paid for 7. I have tried to fight to get out of the dorm because I have been harmed in my health by living in there. There was marijuana and smoking in the apartment daily, the contract states no smoking allowed but they allowed it. What can I do to get out of this lease?

Asked on May 10, 2012 under Bankruptcy Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Your grounds for terminating the contract would be, as you note, the dorm's material breach of contract, by allowing smoking in a dorm you signed up for because it was non-smoking; and possibly also breach of your right to "quiet enjoyment" and of the "implied warranty of habitability" due to the marijuana smoke, which prevents you from having undistrubed enjoyment (use) of the premises and also raises health issues.

Note that for all the above, the dorms must have been on notice of the marijuana smoke and also that it was affecting you--i.e., you must have complained to them about the situation, and also have given them a chance to have done something about.

Assuming the above is true, then procedurally, you have two ways to go, if you insist on getting out of the dorm and cannot work things out voluntarily with the dorm:

1) You can provide written notice that you are terminating your lease and giving up possession for the aforesaid reasons, leave, return the key, and then wait to see if they try to sue you for the remaining 3 months under the contract; if you do, you would raise as  defense that they breached the contract and violated the covenant of quiet enjoyment and implied warranty of habitability.

2) You could bring a legal action on a "emergent"--or urgent--basis, seeking a declaratory judgment (or court  determination) that the dorms breached the lease and you may therefore terminate it without penalty; as long as you're suing, you might also seek monetary compensation--e.g. some amount of money back for the time you were subjected to the marijuana smoke.

The first option gets you out immediately and doesn't cost you anything IF the dorm does not pursue the remaining three months, but is riskier--if they sue you and win (i.e. if a court decides that the dorm's actions were not bad enough to warrant terminating your lease), you'll have to pay the money and have a judgment against you on your credit record.

The second option is safer--you don't break the lease unless/until a court says it's ok--but even on an emergent basis, will take a few weeks and will require you to initiate a lawsuit.

Other options:

1) Call the police on the drug users--if they are arrested, that may solve your problem.

2) Don't break the lease (it's only 3 more months, from what you write), but sue the dorms for any health damage and/or medical costs.

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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