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A Lease Does Not Have to Be a Noose

A Los Angeles couple who recently rented an apartment didn’t like what they found when they moved in. The upstairs neighbors were noisy, and the windows didn’t have drapes or blinds. They also complain about a “non-refundable fee” the landlord demanded in cash and are even beginning to wonder if they can somehow get out of the lease they signed.

First of all, non-refundable deposits are illegal in California. Whether it is called a pet fee, a security deposit or a cleaning fee, a deposit simply cannot be non-refundable. A landlord may retain only that portion of the deposit necessary to repair damages to the premises caused by a tenant, to clean the apartment or to cover unpaid rent. The rest must be returned. If it isn’t, a tenant can sue the landlord in small claims court for the amount owed, as well as $200 in punitive damages.

Unlawful Fee

If you have paid your landlord a “non-refundable” fee, you might inform him that California Civil Code 1950.5 makes such a fee unlawful and that you expect him to consider it refundable. If he says you’re all wet and will not be reasonable, you can contact the local district attorney, who might pursue a criminal action if the landlord has done this repeatedly.

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Incidentally, the amount any tenant can be charged as a deposit, including last month’s rent, is legally limited to not more than two months’ rent for an unfurnished place, three months’ rent for a furnished apartment.

Can you get out of that lease because of noisy upstairs neighbors or missing drapes? Probably not. First, check the lease you signed to see if it says anything about providing drapes or other window coverings. If it does, you can remind the landlord of his contractual obligation to furnish drapes and even threaten a small-claims suit if friendly discussion and persuasion are unsuccessful.

If not, and if the drapes were missing when you first inspected the property, the landlord may have meant to rent the place without them, and it will probably be difficult to persuade a judge that drapes were an implicit part of the bargain.

Your noisy neighbors are probably not grounds for terminating the lease. If they are really a significant and continuing problem, you’ll have to ask the local law enforcement authorities for help, or consider filing a nuisance action directly against the neighbors. On the other hand, if the lease contains rules about noise and parties on the premises, you can demand that the landlord enforce the house rules.

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All this does not mean that you are necessarily stuck in an apartment you can’t stand for the full term of the lease. Any lease can be broken if you’re ready to pay the consequences, and they don’t have to be that much.

But before you do anything rash, first review your lease to see if it allows you to sublease the premises. Most leases require a landlord’s consent for this, and such consent cannot be withheld unreasonably.

Technically, if you break a lease, the landlord can sue you and collect rent for the remainder of the lease. So if you have a one-year lease and depart after three months, you’ll owe nine months’ rent.

Legal Doctrine

However, there is a legal doctrine called mitigation of damages that may make that amount much smaller. Everyone has a legal duty to mitigate damages. In the case of a lease, a landlord will have a legal obligation to try and find another tenant to replace you once you leave. And if within two months he finds a new tenant who can pay the same rent, then you owe only the two months’ rent, plus any incidental charges, such as the cost of advertising the apartment. If he has to rent the place for less, then you will owe the difference.

So if you’re thinking of walking out on a lease, you should first check out the apartment market to see how easy it will be for the landlord to find another tenant. You may even want to advertise the apartment yourself and try to find a suitable tenant to move in as soon as you leave, thus avoiding any loss to the landlord at all.

If you do decide to leave, give your landlord as much advance notice as possible, so he can try to find a replacement, and make it less likely that you will lose much by moving to a better, quieter place.


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