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Your Responsibilities When You Leave

 

If You Have a Lease

If you have a written lease and you want to move out permanently, ask yourself two questions:

  • When is my lease supposed to end?
  • When do I want to move out?

1. Moving at the End of Your Lease

A written lease must include the date your tenancy ends. If it does not include an end date, your lease is not valid.  If your lease is not valid, you should read the next section in this chapter,  If You Do Not Have a Lease.

If your lease is valid and you plan to leave on the date it ends, you need to know if it is a "self-extending lease".  A “self-extending lease” has an end date, but you still have to write to your landlord to end the lease. Your landlord can also write to you to end the lease. If neither of you write to the other to end it, the lease does not end. Look in the first 10 or 15 lines of the lease. If the lease is self-extending, 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 you have a self-extending lease, you must give your landlord notice that you are leaving:

  1. Your notice must be in writing; and
  2. 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, the lease requires one month's notice. If you do not notify your landlord properly that you are leaving, your lease will continue for another term. Your landlord may be able to hold you responsible for paying rent after you move out.

If your lease is not self-extending, your tenancy simply ends on the end date in the lease. You do not have to give your landlord notice that you are leaving. For more information about self-extending lease clauses, see the section  How Long Is Your Lease Valid in Chapter 4: What Kind of Tenancy Do You Have?

2. 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. When you sign a lease, you agree to pay the landlord rent for the length of your lease.

Your lease may have a clause about leaving before the end of the lease. The clause may say that you are responsible for the rent after you leave. Despite this clause, there are a number of ways you can end your tenancy. Each has risks in terms of your responsibility for rent. Keep these risks in mind when you are thinking about leaving your apartment before your lease is up.

The Landlord Agrees to Your Moving Out

You can contact the landlord or her property manager and tell her that you need to move out. The landlord may agree that you can leave early. If she does agree, send her a letter right away. Write that you are "surrendering" the apartment. Ask her for written "acceptance of the surrender."1 You must use these specific words. Then ask the landlord to write back to you saying that she has agreed to your leaving by a specific date. Once you get this letter, a landlord cannot hold you responsible for the rent after you leave.2

Be careful about just accepting a verbal agreement with your landlord, even if you and your landlord are on good terms. If you cannot get a signed copy of the letter that says she agrees that you can leave early, she may try to hold you responsible for the rent after you move out.

The Landlord Refuses to Make Repairs

If the conditions of your apartment are very bad, you may be able to get out of your lease legally. The conditions in your apartment have to be major violations of the Sanitary Code. If you have notified the landlord or a housing inspector about the bad conditions, and the landlord has not repaired them promptly, you can end the lease legally.3

Ending your lease is called “voiding” the lease. If you do not void the lease legally, a court may decide you owe rent to your landlord. The court may decide you owe rent, even after you move out. However, before you can legally void the lease and thus prevent your being liable for the rent after you leave if your landlord tries to sue you. Before you can end the lease legally, you must take the specific steps outlined below:

  1. Get a local housing inspector to inspect your apartment and write a report. The report must include the conditions that violate the state Sanitary Code.4 For information about how to get a housing inspection, see Chapter 8: Getting Repairs Made.
  2. Make sure your landlord gets the report. 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, also. Then she cannot say that she did not get the report.
  3. When you send the report to the landlord, include a letter that lists other times you asked the landlord to make repairs. Explain how long you have been living with the problems in the report.
  4. Give your landlord enough time to complete the repairs. The inspector’s report gives the landlord a certain amount of time to fix the problems. After your landlord gets the inspection report, she must begin all repairs. She can hire someone to make the repairs. But the repairs must be finished by the time described in the report. If the landlord does not begin or complete the repairs within this period, then you can break your lease.5
  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."6 It is unclear what is "a reasonable time" in which to move out because of poor conditions.
  6. You do not have to write a letter to your landlord before you move out. But it is good to write and explain, why you are moving out. Below is a sample letter.

    Dear Landlord,

    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.

  7. It is also a good idea to take pictures of the problems in your apartment. If your landlord later decides to sue you for breaking your lease, you will have more proof that the landlord broke the lease. You can show the landlord did not provide a safe and sanitary apartment.

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 rest 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.

Check your lease before deciding to assign. Many leases do not allow tenants tom assigning their lease. Or your lease may allow you to assign only with the landlord's permission. For more information about assigning your lease, see the section in this chapter called Assigning Your Lease.

You Simply Leave

You can simply leave and run any risks that might follow. The risks are:

  • The landlord will probably keep your security deposit
  • She may try to sue you or hold you responsible for the rent until another tenant moves in.

However, the law requires the landlord to make a reasonable effort to find another tenant.7 Let your landlord know you will be leaving. If she does not make a reasonable effort to find a new tenant, you can advertise the apartment yourself. Describe the apartment and the rent you pay.

If people contact you, show them the apartment and explain to them that you are moving out. Let them know you do not know if the landlord will increase the rent. If they are interested in renting the apartment, tell them to contact the landlord directly. Give them the landlord's name and phone number. Keep a list of all tenants who are interested in the apartment. To protect yourself, you may want to send the landlord a letter with the names of these possible tenants. If you need to go to court, your letter will show that replacement tenants are available.

Your landlord has the right to sue you for rent after you leave. But landlords may not want to take the time and money to do this. If a landlord does win a lawsuit against you, she cannot collect the money from your welfare or Social Security.8

You Stop Paying Rent

You can force the landlord to end your tenancy. If you stop paying the rent, your landlord will probably send you a 14-day notice to quit for non-payment of rent. When your landlord sends a notice to quit, he has terminated your tenancy. You may leave.9 Not paying rent usually works, but be very careful.

More and more landlords use computer services that track tenants’ records and history. If you have been evicted for non-payment of rent, this information may get into the computer system. You may have problems when you try to find your next apartment. If you have a Section 8 voucher or some other subsidy and you stop paying rent, you may risk your subsidy.

If You Do Not Have a Lease

If you do not have a lease and you are occupying the apartment with the permission of your landlord, then you are a tenant at will.10 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.

1. Give Your Landlord Proper Notice

If you are a tenant at will, you must give your landlord written notice that you are moving out. You must write to your landlord at least one full rental period or 30 days (whichever is longer) before moving.11 The 30 days or rental period starts from the time your landlord receives the notice. It does not start from the time you send it.12

You pay your rent on the first of every month. 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. Make sure that you leave enough time for delivery of the notice. Mail it first-class, and be sure to save a copy for yourself.

To be safe, it is a good idea to deliver the notice yourself. Otherwise, there could be a question of whether the landlord received the notice.13 If you are worried that your landlord may say she did not get it,

  1. Send the notice by certified mail , return receipt requested,
  2. Send another copy first-class mail,
  3. Hand deliver a copy to your landlord, and
  4. 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 end your tenancy. Send it by regular mail as well.

Never attempt to verbally end (terminate) your tenancy. Your notice must be in writing.14 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].15

_________________________________
[Your Signature]

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. You must still pay the full month’s rent even if you have to leave part way through.

2. 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, you can always ask the landlord if she would agree to end the tenancy. For example, you have to move because of a family emergency. If both landlord and tenant agree, they can end a tenancy at any time16 Get the agreement in writing. If you think the landlord will only agree to it verbally, have someone go with you. This other person will witness what the landlord says. Then you can send the landlord a letter "thanking" her for letting you leave without giving the right amount of notice. The letter will help you show you had an agreement.

Ahead of Time
You and your landlord may agree ahead of time on how much notice you must give the landlord before you move out. 17 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.

3. 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.18 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 try to find replacement tenants and give these names to the landlord so that she can try to fill the apartment. See the section in this chapter called You Simply Leave.

Risks of Leaving without Proper Notice

Your landlord may try to make you pay rent until she finds a new tenant if you leave before a lease ends and

  • your landlord does not agree to end your tenancy, and
  • You do not give proper notice that you are terminating the tenancy, or
  • You do not properly surrender the apartment. 19

If a new tenant moves in, the new tenant may pay less rent than you did. The landlord may try to make you pay the difference between the rent you were paying and the rent the new tenant pays. If you do not agree to pay the landlord this money, she will have to sue you to get it. If there is not a lot of money 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.

Endnotes

1. The law requires that surrender of a rental unit be in writing. G.L. c. 183, §3: "no 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).

2. Security Sys. Co. v. S. S. Pierce Co., 258 Mass. 4, 5 190 (1926).

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 …."

6. G.L. c. 111, §127L.

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. Exempt from creditors: (1) welfare payments under G.L. c. 235, §34 (paragraph 15); (2) Social Security payments under 42 U.S.C A. §407(a); and (3) certain pension and retirement benefits under G.L. c. 32, §19.

9. 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.

10. Williams v. Seder, 306 Mass. 134, 137 (1940).

11. G.L. c. 186, §12. Note that the landlord can terminate the tenancy with such a notice, as well.

12. May v. Rice, 108 Mass. 150, 152 (1871); George Warshaw, Massachusetts Landlord-Tenant Law, §3.3 (1987). Ryan v. Sylvester, 358 Mass. 18 (1970), readily advises the sufficiency of service.

13. See Ryan v. Sylvester, 358 Mass. 18 (1970); Gerson Realty Inc. v. Casaly, 2 Mass. App. Ct. 875 (1974).

14. G.L. c. 186, §12.

15. 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).

16. 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. Farson v. Goodale, endnote 16.

18. 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).

19. 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).


Produced by Pattie Whiting
Last updated October 2010


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