A Legal Primer on Lease Agreements
A lease agreement is the legally binding document that describes each tenant’s rights and responsibilities for occupying residential or commercial space. Lease agreements (or apartment leases) can vary by landlord or property management, but most will contain at least a few common elements. Depending on the type of rental, a lease agreement may also have provisions that benefit the tenant and the landlord in unique ways. For example, in some commercial leases, the premises are offered free of a landlord’s liability for "silent" defects or death or bodily injury to a tenant. A "silent" defect includes, but is not limited to, the presence of lead-based paint or mold. Commercial leases in Florida must contain a provision that identifies whether new or used materials were utilized in any construction and whether the used materials are "free from defects." Florida lease agreements may also include clauses meant to benefit the landlord, which tenants might want to pay particular attention to. For example, some lease agreements make the tenant responsible for the costs of repairing damages caused by any fire or casualty damage. Florida law, however, provides that a lease agreement cannot waive the landlord’s duty to repair those items that materially affect the health or safety of the tenant or other occupants of its premises. Tenants occupied in industrial use space, for example, would not be protected from waiving the duty to repair for a fire or casualty loss . A commercial lease in Florida must also "state the function for which the space is leased . . . (if) any significant value is to be derived from that function." It is now common for landlords to provide the space "as is" and make any repairs to the premises the responsibility of the tenant. These and other lease agreements or apartment leases can be lengthy legal documents and tenants should pay particular attention to provisions before signing the document. Before attempting to break a lease, it is important to read through your lease agreement for special terms applicable to your premises. In Florida, landlords must take certain steps before a tenant can break the lease. Landlords must provide the tenant with written notice if the lease agreement is breached by nonpayment of rent or material damage to the premises. If the tenant fails to cure the breach within three days, the landlord may terminate the lease agreement. As with any Florida lease agreement, the tenant has the right to break the lease for the landlord’s failure to make necessary repairs, even for a fire or casualty loss. Florida law provides that a tenant may terminate the lease within seven days if the circumstances render the dwelling unit uninhabitable. Tenants may find it confusing to attempt prior to breaking the lease whether any other issues could arise from breaking the lease. In that case, it may be necessary to consult experienced legal counsel.
Tenants Can Legally Break a Lease in Florida
In Florida, there are several situations that may arise which can give you a good reason to break your lease. Florida Statute 83.595 provides compliance with the lease as a specific exception to enforceability of the lease. For example, if the landlord has not complied with the lease, your obligations under the contract may be suspended. Unless there are other considerations, an individual seeking to break a lease as a result of a landlord’s failure to comply with the lease would generally be successful. Landlords are required to ensure the premises are up to applicable building codes and are safe and habitable. If the conditions are unsafe or unsanitary and could potentially cause harm, the lease may be broken by providing your landlord written notice and allowing them 7 days to make necessary changes. If the changes are not made in that time, then you may leave the premises without penalty. For example, if the locks are not working to the premises or there are rodent or insect infestations, this could be considered an unsafe or unsanitary situation. It is recommended that photographs be taken of any conditions you believe to be unsafe or unsanitary and supporting documents be requested from your landlord to document the complaints. Again, the law requires your landlord be given the opportunity to make the necessary repairs prior to you having a legal right to terminate the lease with no penalty. This may be accomplished by emailing a letter to your landlord giving them the 7 day notice. If your lease contains specific language creating a situation where you are allowed to leave the premises you will essentially have no further obligation to fulfill the lease obligations. If you are being called to active military duty the Soldiers and Sailors Relief Act of 1940, 50 U.S.C. App. Sec. 501 (2006) allows for early termination of your lease. However, you must provide your landlord a copy of your orders prior to your lease termination. If your lease has not been breached in the appropriate way and you wish to break the lease early you may be liable for damages and penalties. It may be in your best interest to speak to a landlord and tenant attorney regarding your options.
Legal Grounds for “Breaking a Lease” in Florida
Breaking a lease early doesn’t just involve satisfying one of the above grounds and potentially paying fees, but also providing notice of your intent to break the lease agreement. Under Florida law, if you have:
• A week-to-week lease or month-to-month lease in Florida, you are required to provide the landlord with seven days’ notice before vacating a weekly lease and 15 days prior to vacating a monthly lease. The notice should be in writing and hand delivered by a person of suitable age or emailed to the landlord.
• An annual lease in Florida, you are required to provide the landlord with 60 days’ notice before terminating an annual lease. The notice should be in writing and hand delivered via a person of suitable age or in writing and mailed to the landlord’s place of residence.
As noted, the notice must be in writing and delivered either personally or by certified mail. There is no standard form for the notice, so it can be simple and direct. For example:
Dear Mr./Mrs. Landlord,
This is to inform you that I am breaking my lease at [insert address] and vacating the premises on [your last day].
Sincerely,
[Your name]
It is not necessary to go into any great detail. Just make sure to get the date of your last day on the premises correct. It is also best practice to request a return receipt when delivering the notice via certified mail so you have proof that the notice was delivered in a timely fashion.
The Florida Eviction Notice Requirement
The process of breaking a lease legally in the State of Florida typically involves the following steps:
Give Notice: Most leases have a provision requiring tenants to provide written notice to landlords if the tenant wishes to vacate the rental premises. A tenant must follow the notice requirements (days, method of notice, etc.) carefully to avoid exposing herself to rent liability. You will want to make sure to give your landlord written notice of your intent to vacate, even if your lease allows you not to do so.
Document Everything: A tenant should document everything, particularly communications from the landlord. It is important to have a running tab of any and all communications had with the landlord regarding your intent to vacate. Communications should be documented either by saving emails or text messages from the landlord and keeping them in a single folder. Phone calls should be documented in a spreadsheet or on paper with notes indicating the date and time you received or placed the call and a summary of what was said.
Negotiate with the Landlord: Many landlords have no interest in pursuing a lease that has a few months remaining. If you have have a good relationship with your landlord, it is worth exploring negotiating an early lease termination. An early lease termination saves you from future liability for unpaid rent in most instances and it gives the landlord another tenant for the remainder of the lease term rather than subjecting the landlord to the expense of pursuing you for breach of contract. Furthermore, the landlord may be willing to negotiate payment of the security deposit to you as a result of your mutual early termination of the lease.
Breaking a Lease in Florida 101
Breaking a lease agreement without following the required procedure for termination could result in several legal and financial consequences. Even if you have a good reason, breaking a lease early can still be considered a contract violation, and you could be subject to legal penalties.
In addition to whatever amount of rent you owe after breaking the lease, your landlord may be able to assess penalties for the rent that would have been due until the end of the lease term, plus damages equal to two months’ rent. You may also be responsible for any other fees contained in the lease, such as the cost of re-renting the property. A lease that requires the tenant to pay these fees may still be enforceable even if it is not signed by the tenant.
In addition to requiring you to pay certain penalties, your landlord may also take an action against you in the civil court system for breach of contract . If you lose, you’ll be required to pay your landlord’s legal fees for having to take you to court to enforce the lease.
Regardless of whether or not you break a lease agreement legally, your failure to pay rent could have a negative impact on your credit score. This is because landlords often report unpaid rent or breach of a lease to credit bureaus. When you attempt to acquire a new rental, the potential landlord will find this record on your credit history and could determine that you are a liability, based on your previous rental history.
To avoid the legal and financial penalties associated with breaking a lease illegally, it’s always best to take the necessary steps to legally terminate the contract. If you aren’t able to follow the legal requirements, at the very least you can minimize your risk of any potential consequences by making arrangements to pay for any remaining rent or to help the landlord rent the property to someone else.
Legal Consequences of Breaking a Lease
If you’re breaking your lease and causing your landlord to lose a monthly rent check, does the law force the landlord to try to replace you? No, but the law does require a landlord to mitigate damages from losing your rent payment. That means if you leave a rental property before your lease is up, the landlord needs to try to find someone else to move in. Otherwise the landlord is going to have to eat the loss in income while the apartment sits empty.
How do you know if your landlord is looking for a replacement tenant? Well, you may be able to ask your landlord about their efforts at replacing you, but don’t expect a lot of sympathy. Even if your landlord is a terrible one, the fact that it’s his job to get someone else in there, even if you are the worst tenant in the world, usually means he will be looking hard for a replacement tenant.
It’s important for your pocketbook to keep the landlord on your side by showing him you are genuinely interested in making sure he doesn’t have a financial loss because of your decision to break a lease. Let him know when you are leaving so he knows to start advertising for a new tenant. Offer to show your place to interested parties if your landlord doesn’t have in-house help. If your landlord is responsible and up-front with you about his efforts to minimize his losses, it’s likely you won’t have to pay any rent after you leave.
In Florida, the leading case on this issue comes from the Second District Court of Appeal: Sunbeam Rent A Car v. Rawdon. In the Rawdon case, Rawdon was a professional golfer in a multi-year lease with Sunbeam. Rawdon’s plane crashed in Africa, Rawdon was badly injured (but survived) and he had a less-than-optimal landing on the golf course, causing his clubs to be damaged again. Not cool. Rawdon broke his lease with Sunbeam and they were not happy. They sued Rawdon for his remaining rent attributable to his real estate which had been unit 777 (a nice number, huh?) in Gulfview Tower on North Redington Beach. Sunbeam claimed they were hurt by the remaining rent under Rawdon’s lease.
The trial court said Rawdon had to pay. No matter what. He owed all the rent money over and above the tenant’s rights to mitigate his damages. But the appellate court disagreed:
"It is well-settled that, when a breach of a lease occurs, the injured party is required to mitigate damages. See Bank of America v. Putnam Management Co., 129 F.3d 289 (4th Cir. 1997), cert. denied, __ U.S. __, 118 S.Ct. 681, 139 L.E.2d 627 (1998). While a fully commercial lease is not in and of itself a contract for the sale of goods, a fully commercial lease has often been treated as a hybrid of goods and services and thus governed by the UCC. See, e.g., Pollock v. O’Leary, 35 N.C.App. 689, 242 S.E.2d 881 (1978); Kogan v. Northern Leasing Systems, Inc., 172 Misc.2d 267, 658 N.Y.S.2d 848 (1997); Metropolitan Formula Racing, Inc. v. Classic Components, Inc., 29 F.Supp.2d 423 (S.D.N.Y.1998). Specifically, article 2A has been held to govern the lessor aspects of a commercial lease. See, e.g., Williams v. Hudson River Trading Co., 194 A.D.2d 929, 599 N.Y.S.2d 241 (App. Div.1993); Diamond Chemical Co. v. Gardner, 464 A.2d 1349 (R.I.1983). Thus, we conclude that Florida’s law regarding damages for breach of contract applies to a breach by a lessee of obligations under a commercial lease."
Now you know!
Damages Mitigation and Working with the Landlord
In most situations, landlords and tenants are able to amicably settle disagreements amongst themselves. When all else fails, however, one or both parties may feel that the next step should be severing ties through an early lease termination. Even though the law seems to have a clear stance on when lease releases are required, the Florida legal system ultimately does what is in the best interests of all parties involved – including certain factors in its decision-making process that are difficult for non-lawyers to interpret on their own . Therefore, it is unlikely that either party will want to file a lawsuit without the assistance of an attorney.
Some examples of situations in which it is best to seek legal help to break a lease include: While the law dictates whether or not a lease must be released in a Florida eviction case, each situation has its own subtle differences that can affect outcomes. For landlords and tenants in Florida who are struggling with a lease termination or eviction lawsuit, the first step is to consult with a licensed lawyer to get the facts.