Restraining order may provide lease-break rights
Posted 03/01/2012 by Janet Portman
Q: I've been asked by one of my tenants for permission to break her lease. She has a restraining order against her estranged husband, and wants to move away. I told her I'd hold her to the same standard I apply to anyone who breaks a lease -- she'll be responsible for the rent until I can re-rent, and I expect her to pay the back rent that has piled up (two months' worth).
I feel badly for this lady, but I can't afford to lose the rent, either. --Mark S.
A: I'm not sure which question you're asking -- whether it's morally OK for you to proceed as you plan, or whether it's legally permissible. I'll leave the first one to you and your spiritual advisers; me, I'm only about the law.
And the law might, depending on where you live, have something to say about treating this person the way you'd treat any lease-breaking tenant who has no legally justified basis for leaving the rental.
Justifiable reasons include a landlord's failure to offer and maintain fit and habitable premises, but they also include, increasingly, the tenant's need to leave because of fear of continued domestic violence.
When the tenant leaves because of a legally recognized event or reason, the tenant's responsibility for future rent due under the lease is extinguished (though unpaid back rent will still be due).
States began recognizing a domestic violence victim's need to leave as a valid reason for breaking a lease after Congress passed the Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA).
That federal law applied only to people renting with public assistance, in public housing or private housing (Section 8). It relaxed the rules concerning when a recipient could move without jeopardizing their right to continued assistance.
States soon followed with laws that applied to private landlords renting not just to assisted individuals, but to regular tenants as well.
Today, slightly less than half of the states extend some form of protection to victims, typically allowing them to break a lease and move without responsibility for future rent when they have documented the abuse and have notified the landlord in a timely manner.
One such state, Texas, goes one step further: Landlords are allowed to collect unpaid back rent, as you intend to do, only if their lease contains a statement like (or substantially like) this: "Tenants may have special statutory rights to terminate the lease early in certain situations involving family violence or a military deployment or transfer." (Tex. Prop. Code Ann. 92.016.)
In other words, unless Texas landlords educate their tenants of their rights to terminate, whether as domestic violence victims or because they've received deployment or transfer orders, they will lose their right to any back rent that exists when the tenant leaves.
That's pretty strong stuff -- the reader is left wondering whether the Legislature enacted this proviso in response to Texas landlords' practice of denying tenants their rights to terminate in these situations.
Q: I'm about to move into a rental situation in which I'll be the third roommate, replacing someone who's leaving. The departing tenant wants me to buy him out of his deposit. But what if the landlord charges us later for damage that happened before I moved in? How can I protect myself from this? --Jason S.
A: This scenario is very common and doesn't, unfortunately, have a simple solution. To handle this fairly, you'll need the good-faith cooperation of all roommates, and ideally, your landlord's cooperation too. Here are some avenues to try.
1. Ask for an inspection now. Although it's a long shot, you might consider asking the landlord to conduct an inspection now, when the person you're replacing moves out.
Like an end-of-tenancy inspection, this one would look for damage beyond ordinary wear and tear. A landlord who agrees to a midtenancy inspection might be able to spot problems that he'd deduct for, if the entire tenancy were ending right then.
For example, suppose the rug has been damaged by stains and misuse -- ideally, the owner would tell you that he'd charge a certain amount for its cleaning or replacement.
The original roommates should cover this expense, which should come out of their shares, and you could buy the departing tenant's deposit for the original sum less his portion of the ruined rug deduction.
Landlords also inspect for cleanliness at the end of the term. At this point, however, there's no reason to polish up the rental, because the entire group isn't moving. If you stay to the end, you'll have to do your part to clean the unit, which the departing tenant has happily avoided. You might ask that tenant to compensate you for part of the time you'll spend on this end-of-lease chore.
But as mentioned at the outset, it's not likely that your landlord will go along with this request. First of all, in an occupied rental, furniture and personal items may cover or mask damage that the landlord just won't see.
If he sees it at the end, he won't want an argument as to why he didn't note it earlier. And in a broader sense, the landlord really has nothing to gain from this added bit of work: He's entitled to keep the entire deposit until the whole tenancy ends, and how the co-tenants allocate it among them is not his problem.
The last thing the landlord wants is to get in the middle of a spat among roommates as to who caused the damage, and when it happened.
2. Do your own inspection. While you can't force your landlord to conduct an early inspection, there's no reason why all of you can't do one yourselves.
Take a good hard look at the rental and ask yourselves, if we were the owner, knowing how he or she does business and how this place looked when we moved in, what would we deduct for today?
How much would it cost to replace that ruined rug, or clean it? What about the multiple picture hangers in every room -- will these result in a claim that the entire place has to be painted?
When you come up with an estimate for repairs or replacement, divide that cost by the number of roommates, subtract the result from each roommate's share, and offer to buy the departing tenant's deposit share minus that sum.
Of course, you can't be sure that your estimates will be the same as those used by the landlord. Here is where ongoing communication and good faith among all tenants are required.
Suppose the landlord insists on replacing the rug rather than cleaning, which makes your original deduction for cleaning too small. Ideally, you'd contact the departed tenant and be reimbursed for your share of the difference between the actual deduction and your initial estimate.
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