Many of the inquiries that we are getting this Spring 2020 at the A.S. Legal Resource Center and Isla Vista Tenants Union are related to leases which begin in June 2020 or September 2020. Students ask “if UCSB is going to be doing only remote learning for the rest of 2020, why come back to Santa Barbara where the rents are so high when I can live cheaper at my parents’ or elsewhere? How can I get out of my lease?”
The problem is that In order to break the lease, you must have a legally valid reason to do so. Usually, the reason is that there is something wrong with the rental unit itself. The fact that UCSB has gone to remote learning, or that it no longer makes financial sense to live in Isla Vista, are not legally valid reasons to get out of your lease. The following are things you might consider in making the decision regarding your lease:
CHECK THE LEASE FOR A TERMINATION CLAUSE
Sometimes, but not always, there will be a clause in your lease regarding termination of the agreement by the tenant which releases the tenant under specified conditions. Under these clauses, the landlord will release you from your obligations under the lease for a substantial fee, or if you find someone to take your place, or both.
FIND A SUBLETTER/ASSIGNEE/REPLACEMENT
In most cases, your landlord must allow you to find a suitable person to take over your lease, frequently called a “sublet” or “assignment.” Often you will be required to obtain the landlord’s prior written consent, and the written consent of any roommates who remain under the lease. Many landlords charge an “administrative fee” to process the request. A landlord may not unreasonably refuse a proposed sublessee who has adequate financial resources to pay the rent and a clean rental history.
Remember that in most cases, replacing yourself in the apartment without getting prior consent of the landlord is a violation of the lease, which could have serious legal consequences, including eviction of the tenants who remain in the unit.
If you do find a sublessee, be sure to have a separate subleasing agreement with him/her. Also, understand that subleasing does not necessarily relieve you of all your obligations under the lease. If your sublessee should fail to pay his/her rent, the landlord could expect you to cover it.
NEGOTIATE A RESCISSION WITH LANDLORD
A rescission is different than a sublet or assignment. It is a mutual agreement by the parties to cancel the contract that so that it will no longer be binding on the parties, in exchange for some “consideration.” Consideration means that the parties are exchanging something of value, not necessarily money.
LAST RESORT: ABANDON THE LEASE
Before making the decision to abandon the lease, you should consider the potential negative consequences of doing so. The following is a non-exhaustive list:
- The landlord could refer the matter to a collection agency, who will aggressively seek to collect the money from you in exchange for a fee from the landlord.
- The landlord may sue you in court for breach of contract to recover all of the unpaid rent. In many cases, the loser of that lawsuit has to pay for the legal costs of the winner.
- If you abandon the lease, but your roommates don’t, they may sue you to recover the rent they had to pay on your behalf to avoid being evicted for non-payment.
- Your cosigners (aka “guarantors”) may be contacted by a collection agency or sued. After all, that’s the purpose of a cosigner: to guarantee payment to the landlord if you don’t pay. In the typical UCSB-area rental agreement, where tenants are “jointly and severally” liable for the rent, a cosigner may be called to pay even if their son/daughter paid!
- Your credit record and score (and that of a cosigner) may be damaged.
- You may get a “bad reference” from your landlord when you apply to rent in the future from a different landlord.
“MITIGATION OF DAMAGES” BY THE LANDLORD
It is important that once you have made the decision to abandon the lease, that you inform the landlord right away. This will allow him to begin efforts to re-rent the unit. Under the law, when a tenant abandons a lease, a landlord may not just do nothing and allow his losses to increase each month. He must use reasonable efforts to re-rent the unit. The sooner it’s re-rented, the less you may have to pay. In past years, when the vacancy rate was very low, the requirement of mitigation of damages was beneficial to tenants who abandoned their leases, because it was relatively easy with little effort to fill the vacated spot. It is much more difficult now, and a landlord may not be able to fill your spot at all.
Last updated 5/4/2020