Reasons for early termination
In addition to situations where both the tenant and landlord agree to the termination, Massachusetts allows for early termination of leases under certain circumstances. The most basic is simply the expiration of the lease term. A lease will expire on the date specified in the lease unless a new agreement or conditions state otherwise. However, tenants wishing to terminate a lease, before expiration, must have legally supporting reasoning in order to avoid being found in breach of the lease.
One legal ground for early termination is military deployment under the Servicemembers Civil Relief Act (SCRA). This act requires that a lessee who is a service member may terminate a lease by providing written notice to the landlord. The landlord does not have to agree to the termination of the non-military spouse’s lease, however. Reductions in income due to unemployment, reduced work hours or other loss of income do not qualify for lease termination under the SCRA.
A tenant who has been a victim of domestic violence may also terminate a lease. First, a tenant must provide a written 30-day notice which states, or is accompanied by, a court-issued protection order relating to the tenant. Similar to military deployment , the tenant must provide the notice to the landlord, or an agent such as a property manager.
Similarly, a person who has been a victim of sexual assault may terminate the lease after providing written notice. The notice must be received by the landlord, or an agent, and dated not later than 30 days from the day when the tenant is scheduled to vacate the premises or within three months, whichever is sooner.
A landlord may also terminate a lease due to a lead paint violation if the tenant fails to cure the violation within a reasonable time. If the landlord has given proper notice and the tenant has not complied, the landlord may terminate the lease under Massachusetts General Law Chapter 111, Section 197. Upon termination, the landlord may bring an eviction action against the tenant.
In the event of a serious risk to public health or safety, the health board of the municipality may terminate a tenancy under Chapter 111, Section 122. Again, the tenant should be given reasonable time to correct the condition, but the landlord may terminate the tenancy immediately when conditions are sure to cause injury, damage, or death. Serious risks include the existence of vermin, exposure to poison, improper sewage disposal, or contamination of drinking water.
How to terminate an apartment lease early
In cases where tenants do not have just cause to break their lease, they may still be able to terminate their lease early through mutual agreement with their landlord or by using the following step-by-step process.
Notice
Tenants who seek to terminate a lease without good cause are required to provide the landlord with notice in writing or in electronic form, such as email. In Boston and throughout Massachusetts, tenants must provide a period of notice that is at least equal to the payment interval, meaning a tenant who pays rent monthly must provide 30 days’ notice, whereas a tenant who pays rent weekly must provide seven days’ notice. However, unless the landlord is unwilling to accept a shorter notice period or unless the lease is for shorter intervals, tenants cannot break their lease until the end date specified in the lease.
Returning Possession
Once they make the decision to terminate their lease early, tenants must return possession of the unit to the landlord in a condition that is fit for human habitation. While tenants have the right to remove items of personal property, they must only leave behind unaccompanied "appurtenances" or other parts of the unit that are permanently attached to the property. Tenants who leave behind personal property also risk potentially paying additional fees for the storage of their items.
Paying Rent
Because tenants are responsible for the payment of rent until they terminate the lease, including any additional days needed for the landlord to find a replacement tenant if there is one, rents should be maintained as usual. Some tenants may be able to move out before the end date of their lease, but tenants who do so are still required to pay rent for the period that the unit remains vacant.
Rent Escrow
In some cases where tenants are living in units that are unit only partially fit for human habitation, landlords might try to terminate the lease even though the tenant’s portion of the unit is not uninhabitable. In these cases, tenants may have to escrow rent to retain the option of early termination. Tenants should seek assistance from a lawyer who specializes in tenant rights to ensure that their rent is escrowing properly.
Replacement Tenant
Once a tenant chooses to terminate their lease early, they can either turn over the unit to the landlord as described above or help the landlord find a replacement tenant. When a tenant assists the landlord with finding a replacement, tenants will often benefit from decreased expenses, as they might not have to pay the entire rent until the end date of the lease. Tenants and landlords often prefer to go this route, since it allows tenants to remain in possession of the unit and helps the landlord to avoid paying another person the rent that will be due while the unit is vacant.
Returning the Security Deposit
Tenants in Boston have the right to recover their security deposit when they vacate the unit. In some cases, tenants may be able to use their security deposit to pay the end of their rent, but this may be disputed if a landlord believes that there is a real reason for the deduction. In these cases, tenants should seek advice from a lawyer who specializes in tenant rights.
When tenants seek to terminate their lease early, they should maintain good communications with their landlord, try to provide at least 30-days’ notice, and ensure that they leave the unit in good condition that is fit for habitation.
Possible penalties and fees
Whenever possible it is best for the tenant and landlord to negotiate out a lease termination without penalties or fees. However, if a landlord is unwilling to negotiate an early end to the lease, there are several potential penalties and fees with which to comply. Although damages under the lease cannot be a penalty, often the parties to the lease assume that rent must be made up until the next lease end date, or until new tenants are located for the apartment.
A costly fee is the re-leasing fee, typically one month’s rent. This is not compensation for damages, but often typical fees. Even though the landlord has no obligation to charge a re-leasing fee, it can be used as a penalty to make the tenant feel obligated to lease the apartment until new tenants are located. Another penalty that might be charged is a "break of lease" fee, or an amount equal to 2-6 months of rent.
To protect oneself from these types of penalties and fees, the best practice is to negotiate a written agreement with the landlord where, regardless of the remaining lease term, all rent is made up and the tenant vacates the property. If the tenant wants to move out before the end of the lease term, regardless of the reason, it is important to talk to the landlord about how soon the landlord can locate new tenants and when the property will be ready for them to move in (if they have not already moved in.) In most instances the landlord will agree to return the security deposit in exchange for accelerating this process.
Tenant rights and obligations
In parts one and two of this series, we covered what Hastening Your Happiness with Early Lease Termination is all about and discussed the reasons tenants are seeking early lease termination. In this part, we take a look at tenant rights and responsibilities under Massachusetts state laws. If you don’t have a valid legal reason (also called ‘just cause’) for terminating your lease early, think long and hard before deciding to simply leave the premises. Just because a landlord can’t stop your move-out doesn’t mean it won’t affect them and possibly you. Since most leases require you to give a 30-day notice of intent to vacate, if you don’t provide a 30-day notice, you should expect to lose your security deposit. But so will the landlord. You should also expect the landlord to seek payment for the time it will take to repair or ‘make whole’ the apartment so it can be re-rented. This can be thousands of dollars in rent. You can’t expect to escape without paying back all or some of that loss. If you do want to break your lease, it might cost you, but it’s probably better than being sued for damages. Sometimes, when you break a lease, the landlord will be amenable to working with you on your early move-out date. While a landlord may not have a legal obligation to accept an early termination, it may be in their best interest to do so. In Massachusetts, state laws dictate the following tenant responsibilities, among others. Violation of any of these responsibilities is a "breach of the lease." Once you or a family member has experienced one of these- or any other- significant changes in circumstance, you can legally request an early lease termination based on hardship. As with early lease terminations based on safety issues such as domestic abuse or other criminal activity, tenants must notify their landlord about their change in circumstances and request that they consider a voluntary termination or early release of the tenant from the lease. Keep in mind that even with valid just cause , a landlord is not legally obligated to grant the tenant an early termination. But if the tenant does break the lease, Massachusetts law (Mass. Gen. Laws ch. 186, § 15B (2011)) requires the landlord to attempt to find a new tenant: If [the tenant] violates the intent to perform the agreement, the lessor may, … treat any continued occupancy of those premises as a trespasser. The lessor shall make reasonable additional efforts to re-rent the premises and if, after the lessor has so done, the premises are re-rented, the lessor may bring suit against the lessee for damages suffered by reason of the breach of the terms of a lease. In other words, even if the tenant breaks the lease early, it is the responsibility of the landlord to actively try to fill the vacancy and mitigate their financial risk caused by that tenant breaking their lease. The tenant isn’t off the hook, however, as they are still responsible for paying their rent until the landlord finds someone else to fill that vacancy. Unless you are legally required by state law to consider early lease termination, sending out a form letter notifying your tenants of an early termination date could be interpreted as your releasing them from the lease. That means they can walk away with only their signed letter and you can be out thousands in damages. Good luck collecting. If the landlord wants to maintain a good relationship with their tenant, they should be careful in addressing this issue and seek mediation if emotional issues between the landlord and tenant have become too difficult to resolve. In parts one, two, and four of this series, we discuss what Hastening Your Happiness with Early Lease Termination is all about, look at some of the reasons tenants are looking to terminate their leases early, and discuss the ways you can avoid—and protect yourself from- early lease termination.
Landlord obligations and remedies
In Massachusetts, early termination of the lease by a tenant does not relieve the tenant from continued liability under the lease. The most time-honored method of performance required of a tenant is the covenant to pay rent through the term of the lease. This is because the covenant is the essence of the lease. The landlord expects the tenant to pay agreed rent for the term of the lease, and the tenant knows this. If the tenant breaks that covenant, the landlord can hold the tenant accountable for damages.
If a tenant breaks a lease and does not pay for the balance of the lease term, the landlord may sue for damages. The damages are measured by the present value of future rents remaining under the lease, discounted at a reasonable rate of interest. The lost rent damages are reduced by what the landlord saves in expenses such as taxes, insurance, and maintenance, the cost of re-letting, and the fair rental value of the premises.
The duty of mitigation limits a landlord’s damages for early termination of a commercial lease term by requiring the landlord to use reasonable effort to find another tenant to rent the premises for the balance of the original term. Commercial landlords have a duty to show, and most courts require, a good-faith effort to relet the abandoned premises without delay. A landlord who fails to minimize damages will lose part of its recovery. However, the standard of reasonableness for mitigation is low; the landlord need not accept a bad deal or "suffer as a result." The landlord’s continuing claim in the event it can show that it reasonably mitigated damages is for the future rental value of the premises.
While a commercial landlord must mitigate its damages, it is not required to accept any terms a tenant offers. For example, in W. Reneaux Pertuit & Son v. Recovercare, 2007 WL 2808548, Civ. Action 04-2827 (E.D.La. Sept. 20, 2007), the court held that the landlord was not required to accept a letter of credit rather than cash rental payments. Therefore, the tenant could not be relieved of liability for the remainder of the term because it made partial rental payments and then attempted to pay the remainder in the form of a letter of credit rather than cash.
Alternatives to early lease termination
Although you may want to break the lease you signed, you still may have alternatives to simply vacating the premises and risking liability to the landlord. A lease is a binding contract and, in most cases, the only way to avoid breach of contract liability is to have the landlord agree in writing to terminate the lease. However, two typical arrangements can help the tenant mitigate liability but do not require the landlord to agree to terminate the lease:
Subleasing the apartment to someone else
If you can sublet the apartment to someone else, the landlord must agree in writing to permit the transfer. The written agreement should specifically state that the new occupant’s tenancy will create no landlords’ liability or obligations between the landlord and the tenant. That is , the new occupant will be responsible for a share of the rent and utilities, but you are liable to pay the full rent and utility amounts if the new occupant does not pay his or her share. You can retain rights to the apartment if you later want to move back in. You may be subject to paying part or all of the mortgage interest and real estate taxes. The landlord remains obligated to fulfill the terms of the lease as to both you and the new occupants.
Assigning the lease to someone else
An assignment of the lease is a transfer of all your rights and interest under the lease to another person, called the assignee. The landlord must sign a written agreement allowing the assignment. Your rights to the apartment are extinguished, and your legal obligations are transferred to the assignee.