How to prepare for early termination of 12 month lease I am planning to enter into a 12 month lease in California. However, circumstances may arise which require me to move out before the lease ends. I looked at what typically happens with early termination and none of the options sound good: If you try to sublet, you have to spend much effort and time finding a tenant. Some contracts prohibit subletting. The landlord can easily hold you hostage by refusing to approve any tenant you find. Many early termination clauses are incredibly unfair to the tenant: A common example is that tenant is liable for all the months of lost rent during which the landlord is looking for a new tenant. So if you break the lease on month 1, the landlord could drag his feet and you can be on the hook for 11 months' worth of rent. If you simply stop paying rent, the eviction goes on your record and you can't rent a new house. I'm not really comfortable making a commitment to stay in a place for 12 months, no matter what. All sorts of things can happen in life, nobody can predict what will take place up to a year out. You could lose your job, you could suffer some emergency. It seems a foolish thing to accept such an agreement. However, almost all landlords ask for 12 months so there's not a realistic alternative. What are my options as a leasee for protecting my family from ruin due to early termination of a lease? Are there any defensive clauses I can request to be included in the contract (that the landlord is actually likely to agree to)? Are there any legal protections I can take advantage of?
The ability to bargain for clauses that are more favorable varies with the type of landlord. Termination clauses are no different in this regard. If the landlord refuses to negotiate/modify early termination clauses, the tenant's subsequent decision to enter the lease evidences that he knowingly and willfully agreed to those terms. The tenant is not allowed to disavow them thereafter. Hence the importance of negotiating the clauses, although rental corporations are unlikely to be any flexible. Unless you find a flexible landlord or manage to arrange alternative housing, entering a standard 12-month lease is a risk you would have to take. Legislation typically requires landlords to mitigate damages in the event of early termination by finding as soon as possible a new tenant. However, in reality it is usually too difficult for a leaving tenant to scrutinize the landlord's efforts of finding a new tenant. The best chances to be able to conduct that scrutiny occur when the matter is brought to court. A landlord could have the incentive to find a new tenant soon if the early termination coincides with certain season. A typical example occurs in college towns, since students need to arrange housing by the time the school year begins.
Once your rental contract starts, your landlord must give you access to the rented flat. If he doesn't do so he is in breach of contract. You could sue him, but that would be a bad start for a longer term contractual agreement. It might be less time and effort to look for a new flat. And do you really want to be in a long term contract with someone who breaches contract right from the start based on arbitrary reasons? In any case, you can and you should cut the rent proportionally for every day without access to the flat. Your landlord has by no means a right to check your luggage. Even if there would be such a regulation in the contract, it would be void, because of invasion of privacy. It looks to me that you are in for some bad times with such a landlord. I can assure you that most landlords are not like this. Another reason to probably look for a new flat. Legally you are right, but what does that help you if your landlord is trouble?
They are inclusive if the contract says they are, they are exclusive if the contract says they are. What does your contract say? The lease starts on 14/1/2016 This is the point at which the tenants rights begin - they can take possession from 12:00:00 am 14/1/2016. This date is included in the lease period The lease ends on 13/1/2017 This is the point at which the tenants rights end - they must be out before 12:00:00 am 13/1/2016. This date is excluded from the lease period. I have no doubt that the magistrate had a view on this but as a mediator, it is not their role to express their view: its for the parties to determine a solution which may or may not be informed by knowing the exact legal position.
If the landlord has a right to charge a late fee (and that late fee is not a penalty) then that right accrues from the instant that the rent is late i.e. any time after 5:00:00 pm precisely if that is the time stated in the lease. If only a day is stated then it would be midnight. For case law on the penalty doctrine see PACIOCCO &amp; ANOR v AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED [2016] HCA 28 which involved a challenge to a bank charging late payment fees on credit cards.
By default, the tenant is liable for all rent until the end of the lease. E.g. if neither the tenant nor the landlord can find a suitable and credit-worthy replacement tenant (e.g. if the market has crashed), then the whole lease must still be accounted for by the original tenant, and the lost "rent" becomes "damages". However, there is also a concept of damage mitigation, and California Civil Code 1951.2 explicitly defines that it's the landlord's duty to mitigate damages. This means that the landlord cannot simply sit still and collect the rent on an empty apartment. Because of this, some smaller landlords in California outright have a policy that you can cleanly break the lease by paying for 2 months of rent as a penalty. (It appears that a good summary of various examples about landlord/tenant damage mitigation is available at UniformLaws.org.) However, when it comes down specifically to the SF Bay Area with the ever increasing rents and the lowest residential vacancy rates in the nation, and also especially with the corporate landlords that already have sufficient resources in place to readily advertise and promote an abandoned unit, it can probably be argued that, in practicality, requesting more than one month of rent (in damages) as a penalty for breaking the lease is simply unreasonable.
It would appear, from the facts as stated in the question, that the tenant here has been deprived of some of the tenant's legal rights. Tenants have a right to notice, to a hearing, to appeal the result of the herring, and to obtain property after an eviction. The federal Protecting Tenants at Foreclosure Act (12 U.S.C. § 5201 *et seq.) gives a tenant a right to 90 days notice before any eviction after a foreclosure, even if there is no lease. If the is a lease, protection will in most cases last until the end of the lease. According to the &quot;Landlord/Tenant Issues&quot; page of the NC court system, a lawful eviction in North Carolina requires that a hearing take place in small claims court before a magistrate. The decision in such a hearing can be appealed to a District court. Parties have 10 days to appeal, and the landlord must not try to remove the tenant before the end of those 10 days. If an appeal is filed the tenant may not be evicted until the appeal is heard. According to the court page after eviction: Depending on the value of your belongings left in the home, you have 5 to 7 days after the home is padlocked to arrange with the landlord a time to remove your belongings. Landlords are only required to allow tenants one visit to the home to collect all of the property. If you leave property worth a total of $500 or less in the home, you have 5 days to retrieve it; if it is worth more than $500, you have 7 days. If you have not yet arranged to move your things in this time period, the landlord can dispose of them. The page &quot;Renters and Foreclosure&quot; from the NC Department of Justice (NCDOJ) says: If your lease is entered into before the notice of foreclosure, the federal Protecting Tenants at Foreclosure Act usually requires the mortgage holder and foreclosure buyer to honor your lease. If you do not have a lease, if your lease allows for the landlord to terminate it at will, or if the foreclosure buyer wants to move into the home, you must be given 90 days’ notice to vacate. These protections do not apply if your landlord is a close relative or if your rent is substantially less than fair market rent. ... If you have questions about your rights as a renter during foreclosure contact us for help or call toll free within North Carolina 1-877-5-NO-SCAM. The Nolo page &quot;Protections for Tenants After a Landlord’s Foreclosure&quot; says: The PTFA (12 U.S.C. § 5201 and following) provides protections to bona fide tenants who have a lease as well as those who don’t, like month-to-month renters. ... Renters who don’t have a lease, such as month-to-month renters, or those with a lease that can be terminated at will, get 90 days’ notice before having to move out of the property. Importantly, the PTFA also provides that if state law gives a more generous amount of time for renters to stay in the home, that longer period applies. Foindlaw's page &quot;Tenant Eviction in Foreclosure: What Are Your Rights?&quot; also mentions PFTA and the 90-day notice to tenants it requires The page &quot;Tenant’s Rights in Foreclosure&quot; from HCP l;aw says: One provision under North Carolina law that can protect a tenant before any sale or foreclosure occurs is to record the written lease in the Register of Deeds office. If that is done, any buyer, including a buyer at foreclosure, takes the property but is bound by the lease, just like the prior landlord was. When the lease is not recorded and when a purchaser obtains the property through a foreclosure sale, and the purchaser is not going to occupy the property as his primary residence, in most cases, the tenant can remain through the length of the remaining lease or one year from the date the purchaser acquired the title, whichever is shorter. The NOLO page &quot;Tenant Defenses to Eviction Notices in North Carolina&quot; indicates several defenses that tenants may have to eviction cases. The Nolo page mentions that: North Carolina law states that it is against public policy to evict a tenant by any means other than court proceedings. (N.C. Gen. Stat. § 42-25.6.) Any attempt to evict a tenant without a court order constitutes a self-eviction or a “self-help” eviction. (N.C. Gen. Stat. § 42-25.9(a).) Some common “self-help” methods include turning off utilities, changing the locks, or simply insisting that the tenant leave the premises. (See the Nolo article Illegal Eviction Procedures in North Carolina for more information.) A tenant subjected to “self-help” methods will have a defense to eviction. However, the eviction will only be stayed until the landlord commences a lawful action. The Nolo page advises that: For an overview of landlord-tenant law and eviction rules and procedures, see the Renting and Evictions section of LawHelpNC.org, the Legal Aid of North Carolina (LANC) Landlord-Tenant brochure, and HUD.gov. To read the law itself, see Chapter 42: Landlord and Tenant of the North Carolina General Statutes. The Nolo article has advice on how to find a lawyer and how to get legal aid. The &quot;Guide to the Eviction Process in North Carolina&quot; also mentions that tenants must be served with an eviction notice, at least 7-days notice for a monthly tenant. This page deals primarily with evictions because of non-payment of rent or other fault of the tenet. It also mentions notice for disposing of property saying: landlords must notify [Tenants] of their belongings before disposing of them. If the tenant doesn’t respond, you can dispose of the personal items after the time-frame on the notice expires. (NCGS § 42-25.9) and (NCGS § 42-36.2) NC statutes section 42-25.9 provides that: § 42-25.9. Remedies. (a) If any lessor, landlord, or agent removes or attempts to remove a tenant from a dwelling unit in any manner contrary to this Article, the tenant shall be entitled to recover possession or to terminate his lease and the lessor, landlord or agent shall be liable to the tenant for damages caused by the tenant's removal or attempted removal. Damages in any action brought by a tenant under this Article shall be limited to actual damages as in an action for trespass or conversion and shall not include punitive damages, treble damages or damages for emotional distress. (b) If any lessor, landlord, or agent seizes possession of or interferes with a tenant's access to a tenant's or household member's personal property in any manner not in accordance with G.S. 44A-2(e2), 42-25.9(d), 42-25.9(g), 42-25.9(h), or G.S. 42-36.2 the tenant or household member shall be entitled to recover possession of his personal property or compensation for the value of the personal property, and, in any action brought by a tenant or household member under this Article, the landlord shall be liable to the tenant or household member for actual damages, but not including punitive damages, treble damages or damages for emotional distress. (c) The remedies created by this section are supplementary to all existing common-law and statutory rights and remedies. (d) If any tenant abandons personal property of seven hundred fifty dollar ($750.00) value or less in the demised premises, or fails to remove such property at the time of execution of a writ of possession in an action for summary ejectment, the landlord may, as an alternative to the procedures provided in G.S. 42-25.9(g), 42-25.9(h), or 42-36.2, deliver the property into the custody of a nonprofit organization regularly providing free or at a nominal price clothing and household furnishings to people in need, upon that organization agreeing to identify and separately store the property for 30 days and to release the property to the tenant at no charge within the 30-day period.
Is it just a matter of stylistic aesthetics? Yes. 12 months is probably more common in a lease form sometimes used for tenancies of a fixed number of months different from 12. 1 year is probably more common in a lease form sometimes used for multiple years instead of just one, but rarely for part of a year. This is assuming, of course, that the 12 months are consecutive and not some weird time share.
To put it as nicely as possible, you're not being very smart by threatening to make the house guest's predicament the worst mistake they ever made. Drawing up a notarized contract with a financial penalty is ludicrous and likely simply illegal in terms of contracting for something that is against the law. Beyond that, any threats you make to against house guest could be grounds for them to file a civil suit against you, either for eviction or physical harm, and you'll end up in court rather than simply getting the house guest to leave. An Unlawful Detainer applies if there is verbal or written lease, and as such you would have to go through the formal eviction process. But if this is a simple house guest issue, with no lease or rental agreement in the past, and they are not a family member with some legal right to be in the house, law enforcement is the way to deal with it. It's very simple: set a move out date and say you will call the police or county sheriff if they don't move out on that date. If they don't leave and you do call the police or sheriff, simply say you have a house guest who won't leave, i.e. a trespasser. Law enforcement will come out and you will explain the story; they will likely make the determination that you are the property owner and the guest is indeed not welcome. Law enforcement will tell the guest to leave or be arrested, as per Florida Law - Chapter 810. You can call the police or county sheriff ahead of the move out date and determine the appropriate laws; and get advice on what you might need to do on the actual move out day. If the house guest has property, law enforcement will stand by at that time while they retrieve their property, or make arrangements for them get it at a later date, with or without law enforcement.