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Termination of Tenancy (Breaking a Lease)

Student Legal Services - ASUW

Breaking the Lease

Tenancy for Years
A lease for a fixed duration ordinarily expires by its own terms without written notice from either party. If you have a lease for one year beginning on January 1, it will expire at midnight on December 31 without notice from either party, unless the lease specifically states otherwise. A fixed term lease may also be terminated before its expiration date by the mutual agreement of both the landlord and the tenant. However, this type of lease cannot be terminated at the option of just one of the parties unless there is a provision to this effect in the lease. The expiration of the lease terminates the relationship of landlord and tenant and also the obligation to pay rent. But if you break the lease before it expires, you are liable to the landlord for the rest of the rent in the term plus any other damages.

Periodic Tenancy
Advance notice of termination by the landlord or tenant, as the case may be, is required to terminate a periodic tenancy. The amount of notice required is usually determined by the period of the tenancy itself. The notice must be of one full period, and the termination date must coincide with the beginning of a new period. The notice should identify the landlord and the tenant, the premises, state that it is a notice to terminate, and expressly designate the termination date.

Tenancy at Sufferance
No notice by either the landlord or the tenant is required to terminate a tenancy at sufferance.

Death of the Landlord or the Tenant
The death of either the landlord or the tenant does not terminate a periodic tenancy or a tenancy for years. Rather, the rights and obligations under these kinds of tenancies pass to the deceased's estate.

Sale of the Premises
Sale of the premises by the landlord does not terminate a periodic tenancy or a tenancy for years. The buyer will normally be held to notice the tenant's possession and inquire as to the nature of the tenancy. The tenant can further secure her position by filing her lease with the Office of the County Clerk in the county where the property is located.

Destruction of the Premises
Where the lease is merely of a portion of a building, such as an apartment unit, the destruction of the premises destroys the lease for the apartment and the tenant's obligation to pay rent. However, the destruction of the premises must be accidental and without fault on the part of the tenant.

Where the leased premises includes land as well as the dwelling, such as a house on a lot, the destruction of the house does not relieve the tenant from paying rent.

Forfeiture of the Lease for Violation of Legal Duties
Generally, neither the landlord nor the tenant has the power to terminate a tenancy because of the other party's violation of certain conditions in the lease or other wrongful acts. However, if there is an express provision in the lease for forfeiture on these grounds, that power will exist in the party who has reserved it. As a practical matter, the tenant will rarely be able to negotiate this kind of power for himself, while it is most commonly reserved by the landlord for herself.

A power of termination, if provided for in the lease, will not apply to trivial or technical breaches of the lease, but only where the violations are willful and substantial.

Normally, when a lease is terminated by forfeiture, the landlord-tenant relationship no longer exists and the tenant is not liable for future rent.

Surrender by Act of the Parties
A term for years can be terminated by a surrender-a giving up of the lease by the tenant to the landlord. Surrender of the lease only happens when the landlord and the tenant mutually agree to a surrender or it can occur by operation of law.

Surrender by Operation of Law
A surrender is created by operation of law when the parties to a lease do some act so inconsistent with the existing relationship of landlord and tenant as to imply that surrender they have both agreed to the as made. Examples of surrender by operation of law are:

  1. Where the tenant takes a new lease of the same lands. This destroys the old lease.
  2. Creation of a lease in a second tenant where the landlord and the first tenant agree to a surrender. This destroys the first tenant's lease.
  3. Abandonment and Acceptance An abandonment of the leased premises by the tenant constitutes an offer to terminate the lease. If this offer to abandon is accepted by the landlord, then this constitutes a surrender and destroys the lease. The landlord, however, must accept the offer to terminate before there is a surrender. Whether there has been a surrender depends upon the landlord's intent when he retakes possession of the abandoned premised. If it is his intention not to accept the tenant's offer to surrender, then the landlord can take possession of the rental unit and still hold the tenant liable for rent. Only if he accepts the tenant's offer is there a surrender, and the tenant does not have to pay future rent.

A surrender of the tenancy by the tenant and an acceptance by the landlord generally terminates all rights and liabilities between the landlord and the tenant under the lease. However, the surrender of a lease does not terminate the relationship of debtor and creditor or any liabilities the tenant has incurred during the tenancy, such as past rent or damages.

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