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Lease Termination

Ending Tenancy Voluntary

A beginning and ending date is usually predetermined in a written lease at the signing. Consequently, the tenancy simply finishes on the ending date without notice on the part of either the landlord or the tenant. However, some leases have an automatic renewal clause. As the original lease comes to expiration, the landlord must send the tenant notice of the lease’s renewal 15 to 30 days before the date occurs. Unless, the tenant responds to the landlord as to whether he is planning to terminate the tenancy at the end of the current lease, the lease will be extended for another term. So, if a tenant desires to end tenancy at the expiration of their lease, they must simply give the landlord proper notice. This is best done in writing and be sure to keep a copy for your records.

Involuntary Eviction

A landlord must give 30 days’ notice (one payment period) to terminate a month to month tenancy or request a mutual breaking of a written lease. However, in some circumstances, a tenant may be evicted in less than 30 days. When a landlord wants a tenant out in less than 30 days and the tenant wants to stay, the landlord must obtain a court-ordered eviction through the Summary Proceeding. This is the only legal method of eviction. Don’t be intimidated by verbal threats or official-looking notices drawn up by a landlord. These may not stand up legally.

Eviction proceedings may be started by the landlord when a tenant that remains in possession of the landlord’s property, refuses to pay or defaults on the rent, or uses the premises for illegal purposes. A petition must be served to the tenant stating the date, time and place of the hearing. This petition may be served personally, or may be left “nailed” to the door or with a person of suitable age as long as an additional copy is mailed by certified mail. Make sure you show up at court for such a hearing - you lose automatically if you don’t. Although you don’t need a lawyer, having one might be helpful.

If eviction proceedings are based on nonpayment of rent, the landlord must first demand the rent from the tenant. If, after three days, the rent is not paid, the landlord can begin proceedings. The tenant can raise defenses to the effect that he or she doesn’t owe rent. This may be due to the tenant’s entitlement to rent deduction withholding of rent due to lack of repairs, or debts which would cancel out the landlord’s claim. If the amount of rent is in dispute, or if the rent is withheld, the court may require that it be paid into the court or put into escrow. If the landlord delays for about six months in bringing a nonpayment proceeding, the tenant can argue that the landlord can sue for only the past three or four months. (Again, consult a lawyer.)

If the court makes a judgment for eviction, the judgment can include making the tenant pay the rent owed, plus any attorney fees, and/or the cost of repairs if the lease provides that these charges are to be considered as rent. On the other hand, if the lease provides that the landlord would be entitled to attorney’s fees, and the tenant wins the hearing, the tenant would be entitled to attorney’s fees from the landlord.

If eviction judgment is granted, the court will issue a Warrant of Eviction which can be given to the Sheriff or Marshal, who will serve it in 72 hours. The tenant’s belongings will then be removed and put into storage, and the tenant is responsible for the cost of storage.

An eviction proceeding is usually a complex and unpleasant experience involving time, energy, and money. It is an inconvenience to both tenant and landlord. The best way to avoid such an experience is to choose a suitable apartment, negotiate an acceptable lease agreement, and fulfill your legal responsibilities. If, however, he fails to issue a list of damages or return the money, he is liable for double the amount of the deposit. (He may file counter claim for damages.)

If you are forced to terminate the lease prior to the original term, you should approach the landlord as early as possible and discuss the matter with him/her. You may terminate the lease early if agreeable to the landlord, but you might be held liable for all future payments unless other tenants are found. That’s what is meant by a “full rental period’s notice”. Make sure you check the provisions regarding such termination in the lease.

If your landlord has committed a substantial breach of contract, or has violated city, state, or federal laws, you can legally break your lease. Failure to repair, for example a broken toilet seat, is not substantial reason to break your lease. Consult a lawyer before taking any action.

Forfeiture of Deposit

A deposit can only be used to compensate the landlord for loss or damages he/she actually sustains which the tenant cannot repair or replace. The deposit, which is frequently, but not always, equal to one month’s rent, may be used by the landlord to reimburse himself for damages sustained by him as a result of the negligence or lack of proper care (beyond ordinary wear and tear) of the tenant. Within 30 days after vacating the premises, the entire deposit, less the cost of damage repair, should be returned to the tenant.