TIP SHEET: TERMINATING A LEASE OR RENTAL AGREEMENT
A lease or rental agreement obligates you to pay rent for the entire period of the agreement, even if you move out early: for example, if you sign a 12-month lease that starts on August 15, but you need to move on June 1 of the following year, you’ll be required to pay rent through mid-August unless you make an alternative arrangement such as one of those described below.
If you intend to move out early, it is best to contact the landlord as soon as possible to discuss potential alternatives to your continuing to pay rent when you will not be there. The landlord may have other tenants interested in the premises, and might be happy to replace someone whose lease ends fairly soon with someone who will sign a 12-month lease.
The landlord has a legal obligation under California Civil Code Section 1951.2 to make a reasonable effort to find a replacement tenant. This requirement is pretty easy to meet: if the landlord puts a “For Rent” sign on the building or posts an ad on craigslist, that’s probably enough. If you know you will move out early, one way to protect yourself is to seek out potential replacement tenants. Compile a list of names and include notes that indicate how they are responsible and able to pay rent. Provide this list to the landlord and keep a copy for yourself.
If you move out early, the landlord can keep your security deposit and apply it against the cost for advertising the unit and any lost rent, including the difference between your rent and the new tenant’s rent if the landlord is unable to rent the premises for the same amount. The landlord can also sue you (most likely in small claims court) for any remaining amount that you may owe under the lease. In cities like Berkeley, where there is high demand for rentals, the likelihood that you will be liable for such a deficiency is probably low. Make sure to leave your unit clean and ready for the next tenant so your landlord can not claim it was not rentable and that you are responsible for the rent during the time it took to clean the unit.
Typically, if you do not provide a notice of termination at the end of a 12-month lease term, your lease will automatically convert to a month-to-month tenancy that you can terminate at any time upon 30 days’ notice. Your landlord can terminate with 60 days’ notice.
When you remain in your apartment until the end of the lease term, or if the original lease term has already ended and you are renting month-to-month, it is a good idea to give your landlord 30 days’ written notice of termination.
*Note: Some leases may state that the lease will renew automatically if the tenant stays past the end of the lease term. In the case of a one-year lease, staying for an extra day beyond the one-year term would mean the lease had been renewed for an additional 12 months. To be enforceable, a provision like this must be in at least eight-point bold type, right above the tenant signature line on the lease. If the renewal provision does not meet these requirements, you may legally disregard it under Civil Code Section 1945.5.
Tenants in Berkeley have additional protections from automatic lease renewals: if your lease contains an automatic renewal clause that complies with the requirements of Cal. Civ Code § 1945.5, but you provide written notice to your landlord of your intent not to renew your lease at any time prior to 30 days before the expiration of your lease, then you will not be subject to the automatic renewal clause. (Berkeley Municipal Code 13.79.020)
Another option is to sublease your apartment during the period you won’t be living there. Under a sublease, you rent your premises to someone else for some portion of your lease term and become the “landlord” of your subtenant. As a “sublandlord,” you can enforce your subtenant’s obligation to pay you rent under the sublease, but you also remain responsible for all rent due to the landlord, even if the subtenant does not pay.
A sublease usually requires the landlord’s approval, even though it does not release you from your responsibility to pay rent and meet the other obligations under the lease. Subleasing without your landlord’s permission could result in the eviction of you and your sub-tenant. You can only sublease within the time period you have a right to. For example, if you have a month-to-month lease, you can not sublease for a year period.
Make sure to keep track of when your lease ends if you use the subleasing method to terminate your lease. To protect yourself, write a letter as soon as the lease expires, stating that you are “revoking” any guarantee that would hold you responsible for the subtenant’s rental obligations.
The difference between assigning your lease (see section above) and subleasing is that the person you assign the lease to is now responsible to the landlord. In a sublease, the sub-tenant is responsible to the you, the master-tenant, and not the landlord.
A sample form of sublease is available on the Student Legal Services Form page.
Tenants that are active servicemembers in the military or are victims of domestic violence have special rights that allow them to break a lease without being responsible for future rent:
The Servicemembers Civil Relief Act allows tenants who enter active military service or are called up to the National Guard for month at a time to break a lease that they have already signed with 30 days’ written notice.
Tenants who are victims of domestic violence, stalking, or sexual assault may break a lease with 30 days’ written notice if they include a copy of a court-issued restraining order against the perpetrator, a police-ordered “emergency protective order”, or a police report documenting the incident. This only applies to victims and family members, not nonfamily roommates or perpetrators.
In order to terminate your lease for cause, due to a habitability issue under Civil Code Section 1942, the following 3 conditions would need to be met:
1) There is a significant habitability violation/problem at the premises. These are some of the most common examples of habitability conditions that may exists in your rental unit (in violation of Civil Code Section 1941.1(a) and/or California Health and Safety Code Section 17920.3):
- Inadequate or non functioning heating Civil Code Section 1941.1(a)(4) & Health and Safety Code Section 17920.3(a)
- Ineffective waterproofing or weather protection of roof and exterior walls, including broken windows and doors Civil Code Section 1941.1(a)(1) & Health and Safety Code Section 17920.3(g)
- Inadequate electrical service/dangerous wiring Civil Code Section 1941.1(a)(5) & Health and Safety Code Section 17920.3(a)(10)
- Toilets, sinks, tubs, or showers aren’t provided, don’t work, or don’t provide hot and cold water Civil Code Section 1941.1(a)(2)-(3) & Health and Safety Code Section 17920.3(a)
- Inadequate ventilation Health and Safety Code Section 17920.3(a)
- Accumulations of debris, filth, rubbish, garbage or insufficient trash receptacles Civil Code Section 1941.1(a)(6)-(7) & Health and Safety Code Section 17920.3(j)
- Significant/dangerous mold growth Health and Safety Code Section 17920.3(a)(13)
- Fire code violations including: missing or broken smoke detectors, no emergency exit leading to a street or hallway, stored flammable or combustible materials Health and Safety Code Section 17920.3(h) & Health and Safety Code 13113.7
- Foundation, floors, walls, ceilings, roof supports, stairways, and railings that are in disrepair Civil Code Section 1941.1(a)(8) & Health and Safety Code Section 17920.3(b)
- Vermin/Pests: rats, mice, bed bugs, roaches, etc. Health and Safety Code Section 17920.3(a)(12)
- Inoperable dead bolt locks on the entry doors or inoperable locks on windows Civil Code Section 1941.3
NOTE: The Landlord is not responsible for repairing the damage caused by the tenant, tenant’s family, guest, or pets.
2) The landlord has been notified of the habitability violation(s) at least once.
3) The landlord has failed to repair the issue within a reasonable time, OR the issues are not correctable in a reasonable time frame (for example, fixing the habitability issue would require substantial renovations).
- What is a reasonable time? The law usually considers 30 days to be reasonable but a shorter period may be reasonable, depending on the situation. For example, if the furnace is broken and it’s very cold outdoors, two days may be considered reasonable (assuming a qualified repair person is available within that time period – at a minimum, the landlord should be actively trying to repair such a problem).
Additionally, you would ideally want to have the following:
- Pictures or videos
- Records of when the issue started, how long it was going on for, location of issue, or frequency of issue
- Records of any and all communications with the management or landlord
- Records of any prior attempts by the landlord to fix the issue, and why those efforts were ineffective
- Record of any impacts on your health, such as doctor visits
- Any other evidence of the habitability issue(s) or impacts on your tenancy
- Documentation from inspections or police reports
- For inspections, contact:
NOTE: You should consult an attorney before attempting to terminate your lease using this statute, as this legal ground for lease termination is not available for most repair issues.
Sometimes, a roommate situation doesn’t turn out as expected, and one roommate leaves before the lease term has ended (to plan ahead for resolving disputes that may arise with roommates, please see our Form Roommate Agreement). Usually, the departing roommate will still have legal obligations under the lease, and remaining roommate(s) may have potential legal claims against the roommate who moves out.
When you sign a lease with more than one roommate, each of you is “jointly and severally” liable under the contract, meaning that the Landlord can seek to enforce the lease against any one of the tenants individually (for example, by demanding full payment of rent from just one tenant). This doesn’t typically happen when everything is going smoothly, but joint and several liability comes into play when one roommate moves out of the premises on short notice, and fails to find a replacement tenant to fulfill his/her responsibility to pay the rent.
The roommate who moves out without a replacement is still responsible for his or her share of the rent for the remainder of the lease term, but the Landlord doesn’t have to demand it from the now-gone roommate, and will typically expect the remaining tenants to pay the entire rent. If the remaining roommate(s) don’t pay the full rent due, the Landlord can potentially evict the remaining roommate(s), first by delivering a 3-day notice to pay rent or quit, and then by filing an action for unlawful detainer in Superior Court.
In most cases, the remaining tenants will have the legal right to seek reimbursement from the departing tenant for his/her share of rent, provided that the remaining tenants also try to “mitigate” their losses by looking for a replacement roommate. However, actually collecting any money from the departing tenant can be very impractical, especially if the relationship between tenants has become strained. Often, the most viable remedy to recover the money owed is Small Claims Court.
If you have a roommate who has moved out before the end of a lease term and refuses to continue paying rent, consider these strategies:
- Find a Replacement Roommate: Whenever feasible, this is the simplest and most complete way to deal with the problem. A new tenant who takes the place of the departing tenant can cover the rent obligation, leaving no one with extra out-of-pocket expenses. Ideally, a departing tenant will find a replacement that is acceptable to the remaining tenant(s) before moving out, and if the landlord consents, the departing tenant can assign his/her interest in the lease to the new tenant. Usually, the landlord’s consent is required to bring in a new tenant, but shouldn’t be too difficult since the landlord wants to ensure that the full rent is paid.
- Talk to the Landlord/Property Manager: If a roommate moves out unexpectedly, explain the situation to the landlord or property manager, and ask whether they can offer a reduction in the rent, even if only temporary, while you find a replacement. The landlord does not have to agree to this, but may consider it in the interest of keeping good tenants, ensuring payment of rent, and avoiding the hassle of a potential eviction.
- Offer a Discount: If the remaining tenant(s) are having trouble finding a replacement, they might consider offering the additional space at a rent lower than what the departing tenant was paying. This is not ideal for the remaining tenants, because they will have to collect the difference from the previous tenant or pay it themselves (unless the landlord agrees to a rent reduction) – but it can reduce the initial out-of-pocket losses of the remaining tenants. For example, if the previous tenant was paying $700/month, it may be better to collect $500 per month from a new tenant than to spend two months finding a replacement while the spot remains empty.]
*The information in this article is general in nature. For questions about related issues, consult with an attorney. Currently registered UC Berkeley students can make an appointment with Student Legal Services at sls.berkeley.edu.