If I give notice, is it still abandonment? (lease law)
April 24, 2013 12:37 PM   Subscribe

YANML. If I give notice of early termination of a lease, can the landlord still count it as abandonment and force me to pay rent for the remainder of the lease term?

Say you have a 10 month lease, and after 6 1/2 months you tell the landlord that you will not be needing the apartment for months 9 and 10 (you're moving out mid way through month 8). My understanding of this situation had been that the person in the story (myself) is liable for rent through month 8, and that they lose their security deposit for breaking the lease, but that's the end of it.

Upon telling my landlord that I would like to move out early and break the lease, she told me that what I was planning would require that I pay out the rent for the remainder of the lease (months 8, 9, 10) and lose the security deposit. I was at first puzzled, but upon looking at the lease I realized that there was a proviso for abandonment. I'm in Indianapolis, but haven't been able to find Indiana definitions of abandonment. Other states' laws that I've been able to find have been vague, but usually suggest that abandonment is defined as, well, abandoning the property without notice, which is not what I'm doing.

Am I forced to pay out the lease (presumably I would just pay rent while not living here so I can get the deposit back instead of forfeiting that) or can I dispute whether it is technically a case of abandoning the property?

posted by pdq to Law & Government (18 answers total) 3 users marked this as a favorite
My understanding of this situation had been that the person in the story (myself) is liable for rent through month 8, and that they lose their security deposit for breaking the lease, but that's the end of it.

I don't know about Indiana specifically, but you are wrong here, at least in the general rule. You are on the hook for the entire term of the lease that you agreed to. Your landlord, on the other hand, usually has a duty to mitigate damages. This means that if she finds someone to take over the lease starting in month 9, you're off the hook, but if she makes a good faith effort to find a new tenant and can't, you still owe rent. And if she can only find someone if she charges less, you have to make up the difference.

Your lease or Indiana law may allow you to find a new tenant or subtenant. But I would be surprised if you are allowed to break your lease and simply forfeit your security deposit.
posted by payoto at 12:45 PM on April 24, 2013 [8 favorites]

The landlord has an obligation to mitigate her damages and to find another tenant. You can also facilitate that. Ask her if you can sub-let or if you can not forfeit the rent if you find her a new tenant.

I had to do this in Pittsburgh when I was relocated for a job. I signed it, so I paid it. I paid it in monthly installments though.

Typically there is a liquidation clause in a lease, where you pay a one-time penalty for breaking the lease, usually one-month's rent.

Now, you can make it hard for her, if you choose to do it.

Stop paying rent, live out your deposit and then move and don't give her the forwarding address.

She doesn't have a way of making a note on your credit reports, although she may sue you , and then you'll have a judgement, but then you can fight it in court, then you pay if you lose. But you're going to pay anyway.

I'd negotiate. "Landlady, I see that, but I'm not abandoning the property, I'm moving out. I have a valid reason, state valid reason. I don't want to be a dick about it and I want to work with you. Clearly me paying through the end of the lease is harsh. I'll pay one month's rent as a penalty, which I think is fair. Now, we can do this nice and easy, or we can do this nice and rough. If you're not inclined to see it my way, that's fine. I'm not paying rent, and you can keep my deposit. But now I'm a big, legal hassle. How do you want this to go down?"

Now, I've got balls like that, it might not be that comfortable for you.
posted by Ruthless Bunny at 12:46 PM on April 24, 2013 [2 favorites]

I was in a similar situation regarding a lease, and I can attest that they can ding your credit report. They came up with 6000 dollars in damages they never validated, along with 9000 dollars, the entire charge for the rest of the lease.

I asked them for proof of the damages, and evidence that they attempted to mitigate their damages. Rather than go to court, they rescinded the negative item.

This was in Texas, so the laws might be different. But a landlord can absolutely hurt your credit.
posted by politikitty at 12:55 PM on April 24, 2013


Speaking generally, payoto's advice is correct. A lease is there to give security of tenure, which goes both ways -- a tenant knows they have a place to live for X months, and the landlord knows they have a tenant (and their rent) for X months. Otherwise, what's a lease for?

Unless there is an early termination clause in the lease, the stated term of X months is going to stick.

That said, as a pratical matter, one might be able to leave early, either by doing the midnight shuffle and breaking the lease, incurring whatever penalty and the risks associated with that, or by playing nice with the landlord and coming to some sort of deal, essentially agreeing to amend the terms of the lease.

But absent such an agreement to amend, the stated terms of the lease are going to apply, including the term of X months.
posted by Capt. Renault at 12:55 PM on April 24, 2013

If your lease has a specified term, then you're liable for the entire term. As others have noted, your landlady has the obligation to mitigate her damages by finding another tenant. If she can't, though, you are legally liable for the remaining term.

Perhaps your previous rental experience was with a month-to-month lease? In such a lease, either party can give notice to the other that the lease will expire (the amount of time in advance would be specified in the lease).

I could imagine the argument for abandonment is that she rented the property with the expectation that it would be occupied, and that the tenant's presence would deter property crimes and provide someone who would notice maintenance problems (e.g. a broken pipe) in a timely fashion, before they caused major damage. But that's speculation, since I don't know the law in your state.

IANAL; TINLA. Your best course of action might be to consult an attorney in your jurisdiction who specializes in real estate law.
posted by brianogilvie at 1:20 PM on April 24, 2013

Did you sign a lease saying that you'll be there for ten months? If yes, you are on the hook for the whole ten months.
posted by Elly Vortex at 1:22 PM on April 24, 2013

I'm not an expert on Indiana tenant-landlord law, but in my non-Indiana experience:

--you are on the hook for the whole lease, UNTIL she finds a new tenant
--you didn't abandon the property, you terminated the lease, which is not the same thing
--It's not legitimate for her to take your security deposit (unless you damaged the place)

Also, just because something is written in your rental contract doesn't mean it's actually legal in the state of Indiana. If you can talk to a lawyer, that would probably be the best thing.

Here's a story of someone who got out of paying a "termination fee" on their Indiana lease: http://livingwellonless.com/2011/07/06/breaking-a-lease-how-i-avoided-a-1500-termination-fee/
posted by feets at 1:29 PM on April 24, 2013 [1 favorite]

If I were in your shoes, first I'd find out the letter of the law, and then I'd say

"Hey Landlady, I wanted to talk to you about my impending move. I signed the lease in good faith, but my job [or whatever] requires me to move. I know this puts a burden on you, and I'm sorry for that. That said, I would really like to get my security deposit and last months' rent back if at all possible, and I'm willing to work to make that happen. How about I help advertise the place, and show the place while I'm still here? If I find a new tenant and leave the place spotless, would you be willing to waive the lease-breaking fees?"
posted by feets at 1:39 PM on April 24, 2013 [2 favorites]

Depends on the terms of the lease. If the lease says you can do what you're describing, you can do what you're describing. If it says you're on the hook for the full amount of rent through the end of the lease, then you're on the hook.

Residential leases go both ways. Check your lease.
posted by valkyryn at 1:46 PM on April 24, 2013

Here, I found this information on a small claims court web page from a court in Indianapolis. Check out bullet points 17 & 18:

17. In only two situations can a landlord hold the tenant’s personal property as security for unpaid rent.
a. The Court has found the property abandoned or the court permits the landlord to attach the property, in which case the property may be disposed of or its value applied against any judgment in favor of the landlord. Illegal conversion of another’s property is a crime in a civil suit could result in punitive damages.
b. The landlord and tenant may agree in a writing separate from the rental agreement that the landlord may hold property voluntarily tendered by the tenant as security in exchange for not filing an eviction.

18. Landlords are required to mitigate any damages. For example, if the tenant has left the premises before the lease was up, the landlord must make every reasonable effort to re-let the premises and thereby reduce the rent due from the tenant for the remainder of the lease term;

Reading those together suggests two things to me: (a) "abandonment" is a term of art that has to do with what a landlord can do with a tenant's personal property, it doesn't have anything to do with breaking the lease early; (b) Indiana and Indianapolis follow the common law rule (which payoto explained), which is that a tenant who breaks a lease before the term is up is liable for rent payments for the balance of the lease, except that the landlord must mitigate damages.

The inference I'd draw from all of this is that your landlord is correct. You're absolutely certain you're on a term lease and not month to month, right? Because that makes a huge difference. In a common leasing situation, a lease starts out with a fixed term but after that term expires, the lease then goes to month to month (unless the lease provides otherwise, or you sign a new lease extending the term or providing a new one).
posted by MoonOrb at 2:00 PM on April 24, 2013

The rule is, however long the lease is, that's how long you're liable for --- if you signed a 10-month lease and wanted to move out after 8 months, you're on the hook for months 9 and 10.

A lot of leases have exceptions for military members getting transferred to another area, but generally? No, no exceptions...... you signed the lease, you're liable for the contents of that lease. Sorry.
posted by easily confused at 2:05 PM on April 24, 2013

If I could favorite feets comment here a thousand times, I would.

Everyone else here is WRONG if they say you are "on the hook" blah blah.

Talk to a lawyer or housing advocate to get the details for your jurisdiction, then go back and re-negotiatiate with your misinformed landlord about where your joint rights and responsibilities fall.

Landlords aren't all-powerful in most states. There are legal ways to break a contract that protect the interests of both parties.

Seek formal legal clarification for your jurisdiction, and proceed accordingly.

Good luck.
posted by jbenben at 3:17 PM on April 24, 2013

Upon Preview now that I've read MoonOrb's comment...

- Your landlord must start looking for a replacement tenant when you give notice. They can not let the property sit empty and collect rent + security deposit from you.

It seems like you are giving loads of notice, right? Both you and your landlord can place adverts, show the property, and likely one of you can get it re-let and a lease signed by your move out date. Your landlord has to approve any candidate's credit report and references, but by law any reasonable candidate must be accepted. If there is a few day lag between when you vacate and the new tenant moves in, you are likely on the hook for those few days, BUT, since you are moving out mid-month and a new lease would start on the 1st of the following month, you'll probably owe zero provided you can get it rented!

- In CA, security deposit is ONLY for damages to property, not back rent. Do a walk-thru with your landlord, take pics, check your jurisdiction..... As long as a new tenancy begins on the day after your paid through, and you've caused no damages, and the law agrees, you should get your money back.

- If you've given written notice, how is that Abandonment under the law? My reading of the excerpt MoonOrb provided, and my general knowledge, is that if a tenant leaves in the middle of their night without written notice and they leave any valuables behind, the landlord can keep those valuables to offset any rents owned on the full lease term.

Since you are not abandoning the property and have given written notice (you have given formal written notice and kept a copy- right??) you are not abandoning the property.

OP, just confirm your rights and go back and nicely negotiate this with your landlord. Once you politely demonstrate you know your rights, it should be easy. Tenants break leases with little to zero penalty all of the time provided they are willing to facilitate finding a new tenant.

Don't panic, just clarify your rights and be willing to either (a) show the place with notice while you're still in residency, and/or (b) advertise on Craigslist or the like and find an acceptable tenant to start on month #9 (or sooner if possible) so your landlord isn't out any days of rent.

Good luck.

(sorry for any typo's, I'm on my phone.)
posted by jbenben at 3:44 PM on April 24, 2013 [1 favorite]

Right--the issue here isn't abandonment, it's just breaking a lease. The consequence of breaking a lease (absent any other agreement) is that you are still responsible for the balance of the lease payments. However, this responsibility is tempered by the landlord's duty to mitigate damages by finding other tenants. If the landlord makes no effort to find other tenants, they have not mitigated damages and you should not be responsible for the entire amount. As a practical matter, the landlord doesn't have to do that much to mitigate: it is not so much their responsibility to actually lease it to a new tenant as it is to make a good-faith attempt to do this. So if the landlord does the things she normally does when a lease is up--listing it on craigslist, putting up a For Lease sign, whatever--then she has a very strong argument that she's done all that's legally required.

It's obviously in your best interest to see a new tenant installed, since that reduces your damages here.

Also--you should check Indiana law, but it looked to me on a very quick reading that security deposits may be used for unpaid rent. This is not the case in many jurisdictions, so be sure to check Indiana law on this.
posted by MoonOrb at 3:52 PM on April 24, 2013 [1 favorite]

jbenben and feets give some good advice. Try reasoning with her. It's the only scenario suggested here where both parties get a good deal. Then, if you have no luck, I suppose you might go through the lawyers and/or housing boards route. But try the human-to-human approach first.
posted by futureisunwritten at 3:52 PM on April 24, 2013

Here is a reference to abandonment in the Indiana code on rental agreements

IC 32-31-5-6
(b) For purposes of this section, a dwelling unit is considered abandoned if:
(1) the tenants have failed to:
(A) pay; or
(B) offer to pay;
rent due under the rental agreement; and
(2) the circumstances are such that a reasonable person would conclude that the tenants have surrendered possession of the dwelling unit.

(My bolding). There is nothing about notice, but it does imply that you are not abandoning it if you pay the rent due, whether or not you live there. The non-legal definition of abandonment doesn't imply anything about notice to my understanding anyway.

Here is a definition of what the security deposit can be used for in Indiana, my bolding:
IC 32-31-3-13
Use of deposits
Sec. 13. A security deposit may be used only for the following purposes:
(1) To reimburse the landlord for actual damages to the rental unit or any ancillary facility that are not the result of ordinary wear and tear.
(2) To pay the landlord for:
(A) all rent in arrearage under the rental agreement; and
(B) rent due for premature termination of the rental agreement by the tenant.

posted by jacalata at 4:54 PM on April 24, 2013

Thanks for the advice! Luckily I was planning on moving out only two months before the lease end, so if I stay out the lease and get the deposit back I'm only out one month's rent, which I can stomach.
posted by pdq at 6:04 PM on April 24, 2013 [1 favorite]

If it's only a month, that gives you plenty of time to move your crap to the new place. I like overlap.
posted by Ruthless Bunny at 7:30 AM on April 25, 2013

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