1. If You Have a Lease
If you have a written lease and you want to move out permanently, there are two questions you need to ask yourself:
- When is my lease supposed to end?
- When do I want to move out?
a. Moving at the End of Your Lease
For a written lease to be valid, it must include the date on which your tenancy is to end. If it does not contain an end date, it is a written tenancy at will agreement and you should read the next section in this chapter, called If You Do Not Have a Lease.
If you have a valid lease and you plan to leave on the date that your lease ends, look in the first 10 or 15 lines of the lease to see whether your lease automatically extends itself. If it does, it will say something like:
. . . this lease will continue in full force and effect after the above term from year to year until either the Lessor (landlord) or the Lessee (tenant) on or before the first day of the month in any year, gives to the other written notice of intention to terminate this lease.
If your lease automatically extends, you have what is called a "self-extending lease," and you must give your landlord notice that you are leaving. Your notice must be in writing, and you must deliver it to the landlord by a certain date. Check your lease to see when and how you need to give the landlord this notice. Usually, one month's notice is required. If you fail to properly notify your landlord that you are leaving, your lease will be extended for another term and your landlord may be able to hold you responsible for paying rent after you move out.
If your lease does not automatically extend itself, then your tenancy simply ends on the last day in the lease. In this situation, you do not have to give your landlord notice that you are leaving. For more information about self-extending lease clauses, see Chapter 4: What Kind of Tenancy Do You Have - How Long Is My Lease Valid.
b. Moving Before the End of Your Lease
If you want to break your lease and move out before it ends, the situation is somewhat tougher. By signing a lease, you agree to pay the landlord rent for however long your lease is.
Your lease may also have a clause that says that if you leave before the end of your lease, you are responsible for the rent after you leave through the end of the lease term. Despite this clause, there are a number of ways you may be able to end your lease early and reduce the amount of rent you may owe if your landlord tries to sue you for all the money due on the lease when you move out. Each of the methods of ending your lease early listed below involve different risks in terms of your responsibility for rent. You should carefully consider the risks when deciding whether to leave your apartment before the end of your lease.
The Landlord Agrees to Your Moving Out
You can contact the landlord or her property manager and tell her that you must move out before the end of your lease. Propose a specific date. The landlord may agree that you can leave early. If she does agree, immediately send her a written notice (email, text or letter) saying that you are "surrendering"1 the apartment by _____(state the date) and ask for written "acceptance of the surrender." You must use these specific words. Then make sure the landlord sends you back something in writing (email, text or letter) saying that she has agreed to your leaving by a specific date. Once this date has arrived and you have moved all of your belongings out of your apartment, you must return the keys to your landlord. So long as you have received the letter from your landlord accepting early surrender of your apartment and returned the keys on or before the agreed upon date, your landlord cannot hold you responsible for the rent after you leave.2
You should be careful about just accepting a verbal agreement with your landlord that it's okay to leave early, even if you and your landlord are on good terms. If she will not send back a signed copy of the letter saying she agrees that you can leave early, you should consider whether you want to assume the risk that she may later decide to try to hold you responsible for the rent after you move out.
The Landlord Refuses to Make Repairs
If there are major Sanitary Code violations or seriously defective conditions in your apartment, you have notified the landlord and a city or town housing inspector of the violations or conditions, and the landlord has not repaired them promptly, you can legally end (void) the lease. However, before you can legally end (void) the lease3 , you must take the specific steps outlined below:
You must have a local housing inspector inspect the apartment and write up a report documenting the conditions that violate the state Sanitary Code.4 For information about how to get a housing inspection, see Chapter 8: Getting Repairs Made.
The landlord must receive the inspection report from the housing inspector and have an opportunity to complete the repairs before you can break the lease. While the housing inspector is supposed to serve a copy of the report on your landlord, it is a good idea for you to send a copy of the report to your landlord so she can't later say that she didn't get it. Include with the report a letter detailing any prior requests that you made to the landlord to make repairs and how long the problems cited by the inspector have lasted. After receiving the inspection report, the landlord must begin all repairs as required by the inspector's report or contract with a third party to have repairs made within a specified period of time.5
- If the landlord has not repaired or substantially completed all necessary repairs within the time required, you can choose to break your lease and move out of your apartment, but you must move out "within a reasonable time." It is unclear what is "a reasonable time"6 in which to move out because of poor conditions.
- Although it is not required, before you move out, you should also send your landlord a letter giving her written notice of the reason why you are moving out. Below is a sample letter.
This is to inform you that because of the multiple Sanitary Code violations existing in this apartment that you have failed to repair, we can no longer live in this apartment and are moving out on _____________ (date).
You had notice of these violations through our letters to you and the housing inspection report of ______________ (date). As you have failed to make any repairs, you have breached your warranty of habitability and we hereby choose to void the tenancy agreement between us.
You should also take pictures of the problems in your apartment so if your landlord later decides to sue you for breaking your lease, you will have additional proof that it was the landlord who broke the lease by not providing a safe and sanitary apartment.
3. You Assign Your Lease
You may be able to turn over (assign) your lease to another person. When you assign a lease, you move out permanently and a new tenant moves in for the remainder of your lease term. This person is referred to as the "assignee." Both you and the new tenant will be responsible to the landlord for the condition of the apartment and the rent. However, you should check your lease before deciding whether to assign, because many leases prohibit tenants from assigning their lease, or allow assigning only with the landlord's permission. For more information about assigning your lease, see the section in this chapter called Assigning Your Lease.
4. You Leave
You can leave and run any risks that might follow. The risks are that the landlord will probably keep your security deposit. She may also try to sue you or hold you responsible for the rent until another tenant moves in. But while some landlords may be willing to let you out of the lease, others may not. However, the law requires the landlord to make a reasonable effort to find another tenant.7 If, after notifying the landlord in writing that you will be leaving, she is not willing to let you out of the lease, you can take a number of steps to try to protect yourself:
- Letter to Landlord: Write the landlord a letter telling her she cannot just demand that you pay the rest of the rent for the term of the lease, and that under the law she must make a reasonable effort to find a new tenant to reduce (mitigate) her damages.
- Help Find New Tenant: You can try to find someone (either a person you know or a stranger) willing to take over your lease. If you don’t know anyone who would be interested in moving into your apartment, you can advertise the apartment yourself. If you do, describe the apartment and the current rent you are paying. If people contact you, show them the apartment and explain to them that you are moving out and are not sure whether the landlord will increase the rent. If they are interested in renting the apartment, give them the landlord's name and phone number and tell them to contact the landlord directly. You should also send your landlord a written communication (email, text, letter) with this person’s name and contact information and tell your landlord that you have found someone who is willing to move into the apartment. You may also want to include a reminder to your landlord of her responsibility to find someone to move into the unit to mitigate (reduce) her loss of rent. Keep a copy of all written communications in case the landlord tries to sue you for the rest of the rent under the lease.
- Offer Broker’s Fee: You could offer to pay a broker’s fee to help the landlord find a new tenant.
5. You Stop Paying Rent
You could force the landlord to end your tenancy. If you stop paying the rent, you may soon receive a 14-day notice to quit for non-payment of rent. When this occurs, the landlord has terminated your tenancy and you may leave.8 This strategy, while it usually works, requires extreme caution. In Massachusetts, as in other parts of the country, there is an increasing use among landlords of computer services that track the records and history of tenants, much like a credit reporting service. If you have been evicted for non-payment of rent, this information may get into a landlord reporting service computer system and may create problems when you attempt to find your next apartment. Additionally, if you have a Section 8 voucher or some other type of subsidy, you may put your subsidy at risk if you simply stop paying your rent.
2. If You Do Not Have a Lease
If you do not have a lease and are occupying the apartment with the permission of your landlord, then you are a tenant at will.9 For more information about tenants at will, see Chapter 4: What Kind of Tenancy Do You Have. As a tenant at will, there are basically three ways you can legally end your tenancy.
a. Give Your Landlord Proper Notice
The law requires tenants at will to give landlords written notice that they are moving out at least one full rental period or 30 days (whichever is longer) before moving.10 This time period starts to run from the time your landlord receives the notice, not from the time you send it.11 Thus, if you pay your rent on the first of every month and you want to leave by April 1, your landlord must receive your notice before the end of February (February 28 is OK, but March 1 is not.) You can either mail a copy of the notice to your landlord or give it to her directly. Make sure that if you mail the notice, you leave enough time for her to get the notice before the deadline. If you want to leave by April 1, mail your notice at least a week before February 28th so that she receives it on or before February 28th. Be sure to save a copy for yourself.
If you choose to mail the notice, it might also a good idea to deliver a copy of the notice yourself as well. Otherwise, there could be a question of whether the landlord received the notice.12 If you are worried that your landlord may say she did not get it, send the notice by certified mail, return receipt requested, and regular mail, and keep a copy for yourself. If you only send the notice certified mail and the landlord refuses to sign for it, the notice will not be effective to terminate your tenancy. Send it by regular mail as well.
Never attempt to verbally end (terminate) your tenancy. Your notice must be in writing.13 To follow the law, you should use the following words in your notice:
You are hereby notified that I shall quit and deliver up at the end of the next month of my tenancy on __________ [put the last day of the rental period], beginning after this notice, the premises now held by me as your tenant, namely ________________ [your name and address of apartment].14
If you give proper notice, you may move out with no further obligations to a landlord. If you do not terminate your tenancy properly, you may be held responsible for additional rent.
Note: If you have to leave in the middle of the month, you cannot simply give notice that you plan to move out in the middle of a rental period and pay half a month's rent.
b. You and Your Landlord Can Agree to End the Tenancy
During an Emergency
If you cannot give the landlord proper notice that you will be moving out—for example, if you have to move because of a family emergency—you can always ask the landlord if she would agree to end the tenancy. A landlord and tenant can, at any time and for any reason, reach an agreement to end a tenancy.15 Get this agreement in writing. If you think the landlord will not agree to this in writing, but may agree to it verbally, have someone go with you to witness what the landlord says. You can then send the landlord a letter "thanking" her for letting you leave without giving the right amount of notice, which will help you document your agreement.
Ahead of Time
A tenant and landlord may mutually agree ahead of time on how much notice you, as a tenant, must give the landlord before moving out.16 For example, you and your landlord may agree that you will give her 15 days notice. Again, it's a good idea to put this in writing.
c. You Can "Surrender" Your Apartment
A tenant at will can end her tenancy by "surrendering" the apartment. This happens when you do not have enough time to give proper notice and the landlord will not agree to end the tenancy when you need to end it. In this case, you may legally leave if the landlord accepts what is called "surrender" of the tenancy. A landlord accepts the surrender if she accepts the fact that you are leaving or have left.17 Ways to prove that a landlord has accepted your surrender might include the following:
- Your landlord accepts your keys. (Bring a witness when you return the keys.)
- Your landlord advertises the apartment for rent, makes repairs, or actually rents it. (You might even try to find replacement tenants and give these names to the landlord so that she can take steps to fill the apartment. See the section in this chapter called You Simply Leave.)
3. Risks of Leaving without Proper Notice
If you leave your apartment without giving the required notice under your tenancy at will agreement (at least one month, unless you’ve agreed to a different amount of notice) or if do not return the keys on or before the date you said you were leaving, a landlord may try to make you pay rent for the next rental period (usually the next month).18 Unless you voluntarily agree to pay the landlord this money, she will have to sue you to get it. Depending on how much money is involved, a landlord may decide it's too much trouble to sue you. And, as stated in the previous section of this chapter, the law requires the landlord to find replacement tenants as soon as possible.
1 . The law requires that surrender of a rental unit be in writing. G.L. c. 183, §3: "no estate or interest in land shall be . . . surrendered unless by such writing or by operation of law." However, "any acts which are equivalent to an agreement on the part of a tenant to abandon and on the part of the landlord to resume possession of demised premises, amount to a surrender by operation of law." Talbot v. Whipple, 96 Mass. 177, 180 (1867); see also Guaranty Bank & Trust Co. v. Mid-State Ins. Agency, Inc., 383 Mass. 319 (1981) (where tenant gave her only set of keys to the landlord at the landlord's request in order to show the premises to a potential tenant, there was a valid termination by surrender); Net Realty Holding Trust v. Giannini, 13 Mass. App. Ct. 273 (tenant must show that landlord intended to relieve her of the lease obligation), rev. denied, 386 Mass. 1102 (1982).
3 . Boston Hous. Auth. v. Hemingway, 363 Mass. 184, 199-200 (1973), which established the implied warranty of habitability in Massachusetts and, at the same time, abolished the judicial fiction of constructive eviction for tenants who want to stop paying rent due to bad conditions. In doing so, the court notes that a tenant has contractual rights arising out of the landlord's breach of warranty, including the right to rescind the lease from the time when the warranty of habitability was first breached.
4 . G.L. c. 111, §127L, often referred to as the Repair and Deduct Statute, also provides for the tenant to void the lease as an alternative to making the repairs and deducting the cost from the rent. The following conditions must be met:
1) Inspection by the Board of Health;
2) Existence of conditions that endanger or materially impair the health, safety or well-being of the tenants; and
3) Failure of landlord to begin making the repairs or to arrange in writing to have them made within five days or failure to substantially complete all necessary repairs within 14 days of the notice.
5 . G.L. c. 111, §127L (the landlord must "begin all necessary repairs or … contract in writing with a third party for such repairs within five days after such notice, and … substantially complete all necessary repairs within fourteen days after such notice, unless a board of health, local code enforcement agency or court has ordered that said violations be corrected within a shorter period, in which case said period shall govern ….")
7 . For various statements of the landlord's requirement to mitigate damages, see Edmands v. Rust & Richardson Drug Co., 191 Mass. 123, 128 (1906). The Massachusetts Supreme Court found that the "[landlord] owed to the [tenant] the duty to use reasonable diligence and to make the loss or damage to the [tenant] as light as [the landlord] reasonably could." Woodbury v. Sparrell Print, 198 Mass. 1, 8 (1908). See also Loitherstein v. International Business Mach. Corp., 11 Mass. App. Ct. 91, 95 and n. 3 (1980), rev. denied 441 N.E.2d 1042 (1981); Cantor v. Van Noorden Co., 4 Mass. App. Ct. 819 (1976). But see Fifty Assocs. v. Berger Dry Goods Co. Inc., 275 Mass. 509, 514 (1931). Note that the Boston Housing Court has at least twice found a clear obligation to mitigate. Bridges v. Palmer, Boston Housing Court, 07326 (May 24, 1979); Grumman v. Barres, Boston Housing Court, 06334 (March 1, 1979). See also Gagne v. Kreinest, Hampden Housing Court, 91SC1569 (December 6, 1991), where the judge found that a landlord who did not advertise a vacant unit in the newspaper had not mitigated her damages.
8 . Your lease might have a clause saying that you are responsible for all of the rent for the lease term even after you leave. However, if you do leave after the landlord gives you a notice to quit, your risk is limited for a few reasons. First, your landlord has a duty to mitigate, or limit, her damages (see endnote 5, above), and therefore must find another tenant after you leave. Second, most judges in housing courts will not hold a tenant responsible for the rent after the landlord has terminated the tenancy by giving her a notice to quit. Third, in order to try to collect the rent, the landlord must sue you, and she may not want to take the time and energy to do so. Finally, even if the landlord does win a judgment for the rent, if the tenant is on welfare or Social Security, the landlord cannot collect the judgment from these payments.
14 . Taken from E. George Daher and Harvey Chopp, 33A Massachusetts Practice: Landlord and Tenant Law, §15:47, Notice to terminate tenancy at will—Tenant—Form (2001).
15 . Farson v. Goodale, 90 Mass. 202, 203 (1864), which held that a tenancy at will may be terminated at any time and in any manner which may be mutually agreed upon by the parties. A landlord may waive the notice to which he is entitled.
17 . Talbot v. Whipple, 96 Mass. 177, 180 (1867) ("any acts which are equivalent to an agreement on the part of the tenant to abandon and on the part of the landlord to resume possession of the demised premises amounts to surrender"); see also Guaranty Bank & Trust Co. v. Mid-State Ins. Agency, Inc., 383 Mass. 319, 319 (1981); and Means v. Cotton, 225 Mass. 313, 318-19 (1916). Even given some promising case law, this will not ensure a finding of "surrender by operation of law." Taylan Realty Co. v. Student Book Exch., 354 Mass. 777, 777 (1968); compare Taylor v. Tuson, 172 Mass. 145 (1898).
18 . This is generally called an abandonment by the tenant. Taylor v. Tuson, 172 Mass. 145 (1898); Commonwealth v. Lanigan, 12 Mass. App. Ct. 913, 914 (1981), cert. denied sub nom. Maloney v. Lanigan, 488 U.S. 1007 (1989).