Lease Breaking

If a tenant must break their lease (moving out before it expires), the issue of whether the tenant will owe damages to the landlord in the form of unpaid rent may arise.

Tenant’s Potential Responsibility for Unpaid Rent and Landlord’s Duty to Mitigate Damages

California Civil Code Section 1951.2 is the state law that governs lease breaking. Initially, it should be noted that if the tenant has a valid reason for breaking the lease that has to do with the conditions at the unit, there is a possibility that the tenant may not owe any unpaid rent or damages to the owner. This, however, is a case-by-case situation, and we strongly advise landlords and tenants to contact our office for guidance and counseling.

Under state law, when a tenant breaks their lease there is an initial obligation or debt that is owed by the tenant to the landlord for any unpaid rent for the remainder of the lease. However, before the owner may make a claim for such damages, s/he has a duty to mitigate (lessen) damages by making a good faith effort to re-rent the unit as soon as possible to try to cover any potential loss resulting from the lease breaking. (Ca. Civ. Code § 1951.2.)

If You Must Break Your Lease

If tenants must break their lease, they should give the landlord as much written notice as possible. In most situations, state law requires a minimum of 30 days’ notice, but there may be exceptions. A tenant may also request an initial move-out inspection to be scheduled two weeks before the move-out date in an effort to resolve any potential security deposit issues that may arise from claims of damage to the unit. Although the tenant has no legal obligation to help the landlord find a replacement tenant, it may be advisable to do so since the sooner the owner finds a new tenant, the lesser the amount of damages in unpaid rent the tenant may incur.

Landlords Cannot Charge Lease-Breaking Fees

In Berkeley, landlords are now prohibited from charging fees to tenants for breaking their lease agreements (B.M.C. § 13.78.017). See our Lease-Breaking Fee Prohibition page for more information.

Potential Consequences of Lease Breaking

In most lease-breaking scenarios, what’s commonly at stake is the tenant’s security deposit, and perhaps the risk of being sued for any unpaid rent that accrued during the remainder of the lease or until the unit is re-rented. Under state law, the owner can make deductions from the security deposit to cover some unpaid rent should the tenant break a lease without good cause (Ca. Civ. Code § 1950.5). Lease-breaking situations can also result in either litigation by the owner, most commonly in Small Claims Court, to try to collect unpaid rent, or a Rent Board petition filed by the tenant to recover any or all of a security deposit that they may feel has been wrongfully withheld. For any of these circumstances we strongly advise that landlords and tenants contact us for guidance and counseling.