What Exactly Counts as a Lease Agreement Violation?
The precise definition of a lease agreement will be set forth in the lease itself, however, a breach of lease agreement generally constitutes a violation of one or more obligations created by such lease. The circumstances in which a tenant may breach a lease agreement will depend upon the terms and conditions of each lease agreement. There are a multitude of scenarios across both the residential and commercial spectrum under which a breach of lease can occur.
For example, a tenant may fail to timely pay rent due and owing under the lease. In the instance of a commercial lease, there could be a violation of permitted use of the premises by allowing a third party to use the space to conduct an illegal activity . If a tenant allows a third party (a roommate/subtenant) to live in a rented apartment without the express permission of the landlord, that too may be considered a breach of lease. Of course, a breach of lease agreement could arise from failing to properly maintain the premises or conducting any sort of illegal activity. A breach of lease agreement can also arise if any of the parties to it, typically a tenant, fails to comply with the decision and judgment in an eviction lawsuit, such as failure to deliver possession of the premises to the landlord.
Legal Implications of Defaults on Lease Agreements
The legal consequences of breaching a lease vary by jurisdiction. In a commercial lease, the failure of the tenant to pay rent or properly use the leased premises are the two most common breaches for landlords to pursue legal remedies for and actually prevail at trial. For residential properties, the late payment of rent is the most common reason upon which landlords rely to evict tenants.
One thing all jurisdictions have in common is the requirement to strictly follow the procedures detailed in the lease and in the state’s landlord-tenant law. Where not followed, the remedies sought by the landlord or tenant may be barred. Even though statutes are interpreted in favor of the tenant’s rights, if the tenancy agreement does not need to be terminated then noncompliance with the rental statutes may preclude the landlord from evicting a tenant who has breached the lease or should otherwise be evicted.
If the lease does not need to be terminated, the only remedy left is a lawsuit for money damages. For a residential lease this usually means that the landlord is limited to a judgment for the amount of unpaid rent. An eviction lawsuit may be filed if the landlord wants possession of the property, but the landlord will not prevail in obtaining possession or money damages for unpaid rent. The landlord may be entitled to attorney fees and court costs.
On the other hand, if the tenancy agreement was ended, whether through a notice of termination or the finding of a lease violation, the landlord can sue the tenant for money damages and for possession of the rental unit at the same time, which is usually done in an unlawful detainer action. Even where the tenancy agreement has been terminated, the landlord will leave the court with a judgment for unpaid rent but may lose the possession claim because of improper compliance with the procedures for terminating the tenancy.
Not all damages a landlord incurs from a tenant’s wrongful acts are recoverable. States will place a ceiling on the amount of damages. Many states require a landlord to prove that the tenant’s breach was the "legal or proximate cause of the alleged harm." Through limiting damages, the courts are preventing the landlord from recovering damages that were not a natural and proximate result of the breach by the tenant of its obligations in the lease. In addition, some states reduce damages by the landlord’s failure to mitigate its damages from the tenant’s breach of the lease. In order to lessen the damages from a breach of the lease, the landlord must seek another tenant as soon as the previous tenant vacates the premises.
Both commercial and residential landlords are entitled to a judgment for their attorney fees and expenses incurred as a result of the tenant’s breach of the lease provisions and their bringing the legal action.
What Are A Tenant’s Rights In Lease Breach Litigation?
If the lease is broken by the landlord, whether it is a commercial lease or an apartment lease, the same remedies are available to the tenant against the landlord who has broken the lease. The tenant may be entitled to terminate the lease and recover damages from the landlord caused by the breach, including consequential damages, even in the absence of a provision in the lease which sets them out.
1. A landlord breaches the lease by failing to make necessary repairs Conduct: Where, for example, a leaky roof allows water to seep into the apartment causing damage to the personal property of the tenant, it is common for the landlord to deny any responsibility for such damage on the grounds that the tenant should have been aware of the damage and has not given the landlord notice of it.
Rule: A tenant’s duty to give the landlord notice of the damage is a duty to give notice of the damage to the landlord and not a duty to prevent damage from occurring. Thus, when the landlord violates the lease by failing to make necessary repairs, the tenant is entitled to recover the entire amount of the rent due for the lease term as well as consequential damages for personal property damage without regard to the failure of the tenant to inform the landlord of the existence of the damage and without requiring mitigation of the damage. This is true even if the tenant never occupied the apartment. If the tenant never occupied the apartment the tenant should, however, give notice to the landlord of the failure to make repairs when the tenant is aware of the failure. The failure to do so may give rise to the defense of mitigation of damages referred to below, even though the defense would not be available to the landlord in the first instance.
2. A landlord violates the tenant’s right to privacy Conduct: A tenant’s right to privacy is violated when the landlord enters the tenant’s apartment for a purpose other than the one for which he was granted entry. The landlord often demands an exorbitant fee for access to the apartment. The need for the tenant to obtain access to the apartment immediately may cause the tenant to pay the demanded fee but, at the time that the tenant is required to pay the fee, he has the right to protest the fee and seek whatever legal remedy is available. Often the tenant may have to pay any amount due under the lease, under protest, before filing suit for non-payment of rent. A tenant who pays an amount due under protest should draft a letter to the landlord and file the letter with the Court asserting that he is paying the amount due under protest solely to avoid eviction and is reserving all of his rights against the landlord for violations of the lease.
3. The tenant is evicted and its personal property is damaged or destroyed Rule: A tenant whose personal property is stored in the apartment and is damaged or destroyed while it is wrongfully evicted, is entitled to the actual value of the property without regard to the depreciation of the property. Such a tenant is also entitled to be compensated for the damage to the tenant’s property caused by a lock out, such as compensatory damages for the locksmith’s fee and expenses incurred by the tenant in the effort to regain possession.
Remedies for Breaching a Lease: What You Need to Know
While lease agreements generally contain a series of rights and remedies in the event that a tenant may end up breaching the lease (i.e. failing to pay rent or other assessments, making alterations to the property, not maintaining the property, running a business), in most circumstances the lease agreement will specifically provide for the ability to terminate the lease agreement altogether if there is a breach of its terms.
The right to assess and collect additional rent and late fees is also typically set forth in the lease agreement and can be collected, along with damages to be proven by the landlord in court, as part of an unlawful detainer action to evict the tenant. (See Section 13 of the Lingua Franca Commercial Lease Agreement). In the event that the lease agreement does not provide for any such right to terminate the lease if the provisions of the lease are breached, the landlord must wait for the tenant to pay rent and/or cure any defaults before the landlord can seek to terminate the lease if the tenant doesn’t perform as required.
Unlawful detainer actions are so common in California that statutes have been passed to provide a summary process for their disposition. A commercial unlawful detainer motion , like a residential unlawful detainer motion, should be filed in the superior court of the jurisdiction wherein the property is located. The summons in an unlawful detainer action must be personally served upon the tenant or any other person lawfully in charge of the premises. A default judgment can then be entered against any tenant who fails to answer the complaint within five days of personal service of the summons upon the tenant and/or any other person who is lawfully in charge of the premises. A tenant may also move to quash improper service of the summons in an unlawful detainer action.
Following a default judgment, a landlord may apply to the court for an order for possession. The court must issue a judgment granting possession to the landlord upon finding that the service of the summons and complaint was proper. The sheriff’s department will execute upon the judgment and remove the tenant and his or her possessions from the premises.
Avoiding Violation of Your Lease Agreement
Best Practices for Avoiding Breaching Your Lease (for Tenants and Landlords)
Like any agreement, each party to a lease bears responsibility for upholding its obligations. Even when tensions may run high, it is important to be mindful of how choices, actions, and inaction may lead to a claim for breach of a lease. A few basic best practices can go a long way towards keeping a tenant-landlord relationship on stable footing. Communication. A critical factor in maintaining a positive relationship between the parties is communication. If issues arise, both parties should list those issues, consider potential solutions, and reach out to the other party to discuss those solutions. In many instances, the landlord-tenant relationship can span several months or even years, which will likely result in changes to each party’s circumstances and needs. To avoid missteps, it is always good to start the conversation with the other party. Be mindful of the lease. It is essential that each party understand its rights and obligations under the lease. Familiarity with lease terms may avoid unnecessary violations that could lead to disputes and, in some circumstances, claims for breach of a lease. Maintaining good records. Particularly for landlords, thorough recordkeeping is essential. Not only can good recordkeeping help you stay organized, but it also may enhance your ability to enforce your rights under a lease or defend against a breach of lease claim by a tenant. Be sure to keep copies of all leases and amendments, as well as written communications with the tenant. In some circumstances, documentation—such as returned checks with notation of reason for returned check—can be the difference between winning or losing a legal claim.
Resolving Lease Agreement Breach Outside of Court
While the law is there to protect both tenant and landlord’s rights and obligations, it is in no one’s best interest to jump straight to litigation. Whether you are seeking possession back as a landlord or fighting to stay in your property, lawsuits take time and money away from both parties. This is why there are numerous ways to settle a case before anyone has to file a formal lawsuit in court. First, try to come to an agreement on your own. Whether you are dealing with a residential or commercial lease, if the other side wants to be reasonable then there should not be a problem in coming to an understanding outside of court. Be sure to put the agreement in writing so that no confusion arises after the fact. Next, there is non-binding mediation. If both parties are willing, this informal process may yield a middle ground result. You will go before a third party and present your case. The mediator will then break for a moment and attempt to contact the opposing party separately. He or she will then bring your two positions back together and work to get you on the same page. Again, if both parties are agreeable, this method should work. However, if an agreement cannot be reached, then you may have to go to court anyways . There is also the ability to negotiate an amicable resolution prior to having to go before a board of arbitrators. An experienced attorney will be able to present the facts to the other side and work to come to a result that is fair for both, but still protects your best interest. Depending on the amount of damages and other issues at hand, negotiating can resolve the matter long before it would ever hit a courtroom. Finally, if non-binding mediation does not work, then a formal lawsuit may have to be filed. Typically, you will try to come to an understanding before a judge or panel of arbitrators first. This is a more formal way of going about mediation. A decision will be rendered and it will be binding on both sides. If you are facing a lease dispute, whether as a tenant or a landlord, and want to try to resolve it amicably before taking legal action, an attorney can help. When you sit down with the other party to figure things out, be fair and honest. Do not try to take advantage of the other person, even if they have caused the problems leading up to the lease dispute. Who knows, there may be information that you were not aware of and this is why it is better to work together to reach a resolution rather than go to court where you are at a total disadvantage.