Not breaking a lease so much as a conscious uncoupling
June 23, 2021 7:28 PM   Subscribe

I may want to break my lease to move in with my partner. My landlord would probably be happy I left, so they can renovate my apartment and increase the rent. Since we both want it, can I avoid paying a penalty for lease breaking? Long version inside.

You are not my lawyer, this is not legal advice, I just want your take. Thanks very much!

Me: I live in an apartment in a ten unit building New Jersey, the United States. This is my ninth year living here. I have been a model tenant and have a good relationship with both my landlord and my superintendent. My lease is up at the end of January, but I may want to move out before then to move in with my partner.

My Landlord: My landlord is an individual who works for a large landlording company, and I will conflate the two in this post. They have been renovating the apartments in my building as tenants have moved out (or in one case, died!). Whenever someone leaves, the demolition and renovation starts up, and the apartment is made fancier and pricier to rent. My landlord has gently suggested I consider moving into one of the renovated apartments in my building, which would be a double win for them, since the rent I pay would go up and the rent they charge for my renovated apartment would also go up. I believe my landlord would be more thrilled to see me go (so they can renovate my place) than they would to see me stay and continue paying my current rent.

The problem: So if I want to leave, and if my landlord wants me to leave, that’s a win-win. BUT, my lease has the usual clause saying that if I leave early, I have to keep paying for my apartment until they find a new tenant. (Exact text at end of this post.) Since it’s presumably in their interest that I leave, it would suck if they also extracted the penalty, but it’s apparently within their legal rights. (Note that the lease stipulates a 90 day notice, so if I chose to break it today, I’d be on the hook for potentially 4 months of rent.)

My questions: 1. Does the fact that they would start renovating after I left obviate the clause that I would have to keep paying until they secured a new tenant, since they’d be deliberately putting off getting a new tenant to renovate? From what I’ve read, landlords have to make a good faith effort to find renters, but how does the renovation affect that?

2. Can you suggest an effective way for me to persuade my landlord “I’m going to break the lease, but you don’t need me to keep paying since you want this too?”

3. For that matter, how about the security deposit? It feels wrong—but again, within their rights—to charge me for some wax spilled on the bathroom tiles and chair scrapes on the living room floor if they’re going to be tearing up all the floors, walls, and fixtures the moment I leave. Can you suggest a way I can persuade them to be cool?

4. Since my landlord is assumedly motivated to get me out, do you think I would be able to convince them to waive the 90 day notice?

5. Am I misguided in any of my assumptions? What don’t I know that I don’t know I don’t know?

I checked out previous AskMes, and the common threads of advice are “talk to your landlord” (yep, planning to do that), “contact tenant’s rights groups” (will do that after this), and “find a renter to take over your lease” (not ideal, but whatever’s clever).

The relevant clause in the lease: “The tenant shall give the Landlord ninety (90) days notice if the Tenant decides to vacate the premises before the termination date of the lease. In such an event, the Tenant shall continue to be responsible for the apartment and parking area until a new Tenant has been secured, or the lease for the premises expires, whichever event shall first occur. The Landlord shall be entitled to deduct from the security deposit such expenses as may be incurred because of the Tenant’s early termination of the leased premises, including those expenses incurred to paint, and otherwise prepare the apartment (cleaning and repairs), as well as the advertising, to secure a new Tenant.”
posted by ejs to Law & Government (17 answers total) 1 user marked this as a favorite
Best answer: The only way I see this going the way you want is if your landlord really wants you to leave, and the only way you will know is talking to them. Book an in-person meeting if you can. Lay out the pros for them if you leave and the reasons you gave in this post for them to treat you well. See what they say. Negotiate. If they are willing to waive the lease clause, perhaps you give up the ask on the security deposit. They may not be willing to offer any concessions, but you don't know until you ask.

Decide your course of action for whatever scenario plays out (any combination of your asks/wants) and have a prepared answer. Have your decision made ahead of time so that if they refuse to budge, you know what you want to do.

Good luck!
posted by gemmy at 7:43 PM on June 23, 2021 [2 favorites]

Best answer: Talk to the tenant's legal advice organization in your area, find out of you have rights. Probably nothing that addresses this, but worth a call or 2.

Don't talk to the landlord until you are sure about moving in with your partner. At the very end of a month, before paying rent, make an appt., chat with the landlord, saying, I've been happy to be a tenant here ofr 9 years, blah, blah. It seems to me that if I left, it would benefit you, because your could renovate and increase the rent. Would you be willing to have me leave my lease early? If they agree, produce a simple document(2 copies) stating that they agree to amend your lease so you can leave in 1 month. Use your security deposit for the final month.

If they don't agree, run ads for the apartment so they can't just collect rent and renovate anyway, not showing it.
posted by theora55 at 8:05 PM on June 23, 2021 [6 favorites]

Best answer: This may be bad advice, but depending on your relationship, personally I might bluff a little and go at this the other way. You're thinking of making a move and you're exploring your options on timing, which is true. You might wait for your lease to be up in January, or you might be able to move out a little sooner (your real timeline) but you're worried about the lease penalty and you're curious if there might be any flexibility. I'm not a landlord (though I've had a lot of landlords) and if they're not interested they're not interested, but I feel like that signals you're receptive to an early exit but you'd like to make it worth your while, without committing to anything you're unwilling to do. The reason to not do this is if you think them knowing you're on your way out would negatively affect your relationship in a serious way for the rest of your time there, but I don't read that as a major concern?

Reading between the lines I think you care most about the lease penalty, a little less about the 90 day notice, a little less than that about the security deposit? I'm curious because if you end up negotiating, you might be able to give a little on one thing in exchange for another thing. If you could also say you know somebody who'd potentially be interested in taking over your lease on that timeline, I could imagine that helping your case, but that's really their problem to solve. I'd do this in person if I had the chance.
posted by jameaterblues at 8:06 PM on June 23, 2021 [28 favorites]

Best answer: In the context of court action, Landlords do have to “mitigate their damages.” That is the reason for the recommendation to find someone to take over your apartment. It proves that if they were trying to mitigate their damage, there wouldn’t be any. In the context of this rehab scenario, they might be able to convincingly state that they needed 90 days to get the construction crews lined up, so in that way, the vacancy still is causing them damages. I’m honestly not sure how a court would look at that.

I think I’d talk to your landlord and basically say that you’d like to move out, that you notice they’re renovating, and would it be possible to let you out of your lease with, say, 30 days of notice. If not, I’d ask, can you find a subletter (in some states, they can’t unreasonably refuse that, though I’m not sure how that’s been defined in practice). If they’re saying no, then it would be time to look at state law and make a written request pointing to sources that justify your position.
posted by slidell at 8:52 PM on June 23, 2021 [4 favorites]

If the Landlord is within their rights to charge the penalty, why wouldn’t they?

Your Landlord is a business, not a charity, not your friend.
posted by Capt. Renault at 9:00 PM on June 23, 2021 [2 favorites]

Best answer: If the Landlord is within their rights to charge the penalty, why wouldn’t they?

It depends. I've negotiated outside of the lease for pets, lease terms, monthly rent, etc. Sometimes it works, sometimes it doesn't. It happens all the time. It helps a lot to be a good tenant with a strong track record, and if you're typically clean, quiet, kind, and not a lot of trouble.

And sometimes they'll negotiate when it just comes down to other options being more valuable to them -- for example, it's typically easier for landlords to find a new tenant in summer/fall than in January. And this time, it's clear the new tenant would be paying significantly more.

Since you have a friendly relationship with your landlord/primary point of contact, I'd just ask. I've had luck framing this sort of thing by asking for their advice: "Jo, do you have a minute? I need your advice about possibly changing the end date of my current lease." By asking for advice, you're signalling that you're willing to work with them to come up with something that might work really well for both of you. Then mention the idea of potentially moving to your partner's place, and that you've had a great ten years there, but you wanted to check in with them and see if would it be helpful to them if you cleared out early. Ask them what they think. And then just sort of go from there.
posted by mochapickle at 10:02 PM on June 23, 2021 [2 favorites]

Best answer: What is your worst case scenario? I see it as you have to perform on the lease. So anything you can negotiate is upside.

I believe in starting the conversation in a collegial manner.

"Landlord, can we get together for a short discussion? I have been here 9 years and have been a model tenant. I obviously enjoy living here and I appreciate the way you and Superintendent run the building. Having said that, I also have some personal good news to share. My relationship with my partner has progressed to the next level. We are trying to come up with a date that I can move in with them. My lease is not up until January. We would like to be together sooner. Not withstanding the paragraphs in the lease, can we work something out so that I can move out sooner without penalty? I see it as a win - win for you and me. I get to live with my significant other and you get to finally renovate the apartment and raise the rent accordingly. If I don't move in with them soon, it is likely that I will be staying here longer which you know will delay any renovation and chance to make a material increase in the rent. What I suggest is that we amend the lease to have a 60 day notice clause with no penalty. Does that work for you? "

Then listen to what they respond. If they are as reasonable as you wrote, they are likely to at least negotiate. They are a business and will consider if having you leave early is a good value to them because of the ability to renovate and raise the rent.

Maybe they will agree to changing the end term of the lease to September or October. Can't hurt to ask nicely. Worst case is they say no which puts you back where you are now anyway.

I would not be defensive nor would I talk about rights or legal. I would nicely ask for the accommodation while pointing out the benefit to them. Use the good will built up over your 9 years in the building.
posted by AugustWest at 10:19 PM on June 23, 2021 [2 favorites]

Best answer: I'm with jameaterblues - you're not planning to move out, you're just exploring some random option that has come up. If it's worth it you might take that option, and if not you'll just stay put, it's all good.
posted by trig at 10:36 PM on June 23, 2021 [5 favorites]

Best answer: Going to say what I always say here, that you need jurisdiction-specific advice for real estate issues. In some states, landlords are required to look for replacement tenants, but not all, and, as a practical matter, the courts may or may not be very stringent in holding them to it if they bring a case against you.

If the Landlord is within their rights to charge the penalty, why wouldn’t they?

Actually, penalties for breach of contract are heavily disfavored in American contract law.

Your Landlord is a business, not a charity, not your friend.

Yes, and what do you suppose businesses do when they want to terminate contractual relations? They negotiate.
While, again, I'm not qualified to speak specifically to NJ real estate law, there's an entire doctrine of mitigation of damages affecting how parties are required to attempt to avoid damages from a breach if they can do so. In fact, if the parties can be made better off by a breach (which would result in an "efficient breach"), American contract law generally favors it.

No reason to preemptively go down on your knees because the other party "is a business."
posted by praemunire at 10:40 PM on June 23, 2021 [7 favorites]

Best answer: I would phrase it as your red line in negotiations being that you stay till January. No point saying you might break the lease - they would presumably just love you to pay rent while they renovate, even if that is questionably legal, so don't put that on the table and give them that hope.

Say instead that you're interested in flexibility, or even an agreed date in the future - and you don't have to say why, that's just showing your hand - but if you don't get it everything remains as is. If you don't get flexibility your situation doesn't change - and this is where your tenant advice people will give you better options, and you can take them back to the landlord in a round 2 if required.
posted by How much is that froggie in the window at 11:28 PM on June 23, 2021 [1 favorite]

Best answer: If your occupancy is preventing them from renovating your apartment and jacking the rent, then just ask if it would help them if you moved out early, and what they'd be willing to do to facilitate that. They might even pay you to go. It happened at a rent-controlled building I lived in for 9 years, when a new owner took it over.

I didn't get paid because I was too stupid to realize how much leverage I had, and because I didn't learn until later that other tenants had in fact been paid bonuses to move (like, 2 months rent equivalent). I was ready to move, told them I was interested in seeing if I could get out of my lease and they were all like "Cool! Yeah! You bet!" I got my entire security deposit back with interest, and since I paid my last month's rent when I moved in I didn't have to send them a check for my final month.

I mean, minimum I'd require would be no penalties, no responsibility for rent after you vacate, and the return of the entire deposit (get it in writing of course). It depends on the economics of the situation for the owners whether they might incentivize you further with cash. Have other tenants been paid to move out? How much are they increasing the rent? If you can get answers to those questions you'll have a better idea of what's possible.
posted by under_petticoat_rule at 12:15 AM on June 24, 2021 [4 favorites]

Best answer: If the Landlord is within their rights to charge the penalty, why wouldn’t they?

Your Landlord is a business, not a charity, not your friend.

I grew up in a nearly-authoritarian country where labor was treated poorly, and capital is king. Authorities can do what they want, including ruining people's lives over a mistake. So like the rest of my family and friends, I kept my head meekly down and followed these often-arbitrary laws that often favored businesses and the wealthy.

But as I grew up, learned the rules of the wealth and those in power, and acquired cultural capital, I learned that: Everything is negotiable. Everything.

And also you don't have to bow or scrape or plead, you can just calmly ... negotiate.

Some tips for your negotiation:

- I would start off with saying you are THINKING that you want to leave. A casual phone call. Like, hey, I was thinking to move in with my boyfriend. Would you be willing to waive the penalty fees on early termination charges?

- If you say you are definitely leaving or you give your notice, you have lost your edge or your power in negotiation. You may know personally that you are definitely leaving, but they don't have to know that.

- If you give in your notice, they can charge you the penalty fee AND start renovating. Win win for them. So don't show your trump card.

- As AugustWest mentions, your worse case scenario is that you keep your place until January. That is because, if you are going to pay this early termination charge anyway, you might as well keep hold of your flat. This is also your trump card. I would not offer upfront that the apartment will be empty because you will be moving out early.

- You can suss out what they are thinking during your initial conversation. You can feel your way around the conversation, feeling out whether they are definitely keen on getting you out, and how keen are they, and what is negotiable (security deposit returned in full). Don't make promises at this stage. Don't commit to a plan of action, because if you do, then you are stuck. Just feel out the boundaries of your case: what's negotiable and what's not.

- When you get all the facts you need, then you present your case. Probably in an email, because the details can get complicated and you want a trail of communications. You can offer, "As per our conversation on XX date, I mentioned the possibility of ending my lease early and handing in a ninety day notice. You mentioned that you could not get another tenant in despite your best efforts due to renovating the flat. I propose a solution for both of us, in that all early termination fees and obligations beyond the 90 days after I hand in my notice to be waived. I hope that we can come to an agreement, otherwise I intend to see out my entire lease until January, when I will move out." (or something along these lines)
posted by moiraine at 6:43 AM on June 24, 2021 [6 favorites]

Best answer: This is definitely something you can negotiate!

In many jurisdictions, the landlord would not be able to charge you rent *and* renovate at the same time, since he wouldn't be looking for a tenant and the apartment wouldn't actually be available to rent.

Also in many jurisdictions, the landlord wouldn't be able to charge you for, like, damage to the paint or tile if he was repainting and replacing the tile anyways.

But regardless, I would start by saying, "I've been thinking about moving in with my partner - I know you want to renovate my place, so would you maybe be willing to let me break the lease without a penalty so that you can start renovation sooner?" Don't get all legal about it if you don't have to, treat it like a simple negotiation that can be to both of your benefit.
posted by mskyle at 6:58 AM on June 24, 2021 [2 favorites]

Best answer: Oh, for heaven's sake. You are in a strong position: the landlord wants something that only you can provide -- your absence. The landlord has no idea that you want to leave yet. Not only that, but your wanting to leave isn't motivated by some inflexible deadline -- you can choose to stay or leave, *depending on how much the landlord offers in exchange*.

"Dear Bob,

I love living in Milquetoast Estates, and was really happy to renew my lease this year. It's been great, not only because of the low rent, but also because of how well run and beautiful the community is.

I know that you've been upgrading a lot of the units here, and your mentioning the idea of me moving to one of the renovated units tells me that you are interested in upgrading my unit too.

An opportunity has emerged for me to move elsewhere. Although moving would have some advantages for me, the disadvantages and expense of moving are so large that it's been hard to decide when, or whether, to go.

An additional financial incentive from you could make this decision easy for me.

I could leave as early as July, which would mean you could start renovating soon and catch the autumn rental wave.

Of course this is all up to you. I don't know your strategy or the market like you do; you're clearly more expert in this area. However, since my moving could potentially benefit us both, I thought I'd let you know about this opportunity.

posted by amtho at 8:01 AM on June 24, 2021 [2 favorites]

Best answer: See if they'll give you a month's free rent, or $500, or something. Letting you out of the penalties might be a given.

Of course, you landlord could play hardball, but what have you got to lose?
posted by amtho at 8:03 AM on June 24, 2021 [1 favorite]

Response by poster: Thanks all, there is a ton of good advice here for me to synthesize into a strategy! I especially love the answers that helped me reframe the situation in my mind. I don’t have time right now to go through and mark answers but I will soon. And to clarify, I don’t intend to get litigious or defensive in any way, and indeed the worst case scenario is just staying in my apartment through January. Again, thanks!
posted by ejs at 5:13 PM on June 24, 2021

Best answer: If you give in your notice, they can charge you the penalty fee AND start renovating.

OP needs to get tenant legal advice because this is 100% way fucking illegal where I live. Landlords can put whatever they want in a lease even if it's not enforceable. And if the landlord wants to just cash a check on an empty apartment because OP wanted to skidaddle on their lease, where I live the landlord is obligated to make a documented, good faith effort to re-rent the apartment before they could possibly even thinking about cashing in on some windfall payment on an abandoned lease, which they would have to sue the now former tenant for (this never happens IRL).

More than likely OP can get paid to move if they play their cards right. And if not, tell them to keep your security deposit and best of luck to them. I have never let a lease dictate what I did with my life and I think most reasonable landlords understand life happens and leases aren't written in blood (in my state, at least). Especially when it is in their own financial interest, although in my experience landlords aren't necessarily the greatest business people so you might have to spell it out for them as suggested in the example letter above.
posted by bradbane at 6:12 PM on June 24, 2021 [1 favorite]

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