We have a signed lease agreement on a rental property. In April tenant informed our Realtor that they wanted out of the lease which was valid from 12/12 to 12/13. There reason was family member was ill and they wanted to move to assist. We agreed verbally that we would be open to terminating early if they could find us a tenant or if we could market unit again with realtor to find replacement. They decided to move out on 5/15/13 and now want to sue us to retain their deposit of $3650 or a release of contract with no legal recourse for us to seek unpaid rents thru 12/13. They claim that we agreed to early termination verbally and that a verbal agreement is enforceable in Ca. Civil Code. What is the law in this case. What is our legal recourse?
Landlord / Tenant Lawyer
Your tenant is dead wrong. For the most part, a written agreement cannot be modified orally - especially when the parties disagree on the oral amendment. Your tenants are on the hook for the entire term of the lease period, but you must exercise reasonable diligence in re-renting the property. If sound business judgment dictates that discounting the rent will bring in the most money, then your former tenant is on the hook for the difference in what he agreed to pay and what your new tenant is paying. You may use the entire deposit to offset you claim for unpaid rent.
A verbal early termination agreement would not be enforceable. It would not constitute a waiver of your right to sue the tenant for breach of lease by the early termination. How you respond is really a business decision. Do you really want to get sued, and then have to bring a cross-complaint (or a Defendant's Claim if in small claims court)? How collectible would a judgment be against these former tenants?
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.
Construction / Development Lawyer
The tenant is wrong. They owe the full amount of the rent due under the lease. You also have an obligation to try and get new tenants as soon as possible. If you do, then the old tenants' responsibility ends at that point. You are allowed to apply the deposit to unpaid rents.
Hold onto the deposit, and try to rent the unit. If you get it rented quickly, then you can decide if it is worth it to go after any unpaid amounts.
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