Can You Break a Lease Before Possession of Property?
Written leases become effective and legally binding upon execution. Once both parties to a lease agreement -- a landlord and tenant -- sign a lease, the lease becomes duly binding absent fraud, duress or mistake. In other words, absent extenuating circumstances, a tenant has a legal obligation to comply with the lease. If you have a justifiable reason for terminating your lease before possession, you may be able to break or end your lease without further liability for remaining rent.
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Overview
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State laws establish the residential rental property rights and duties between landlords and tenants. Depending on a state's contract and property laws, either side may be able to terminate an existing lease if it was improperly formed. A contract is not binding if it lacks the elements of formation or assent. For example, a contract without an acceptance or consideration is not binding. Furthermore, if a party does not have the legal capacity to consent, he can ask a court to render a contract void. A tenant also has a right to terminate a lease if a contract is based on illegal terms.
Consequences of Nonpossession
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Typically, if a tenant fails to take possession of the property, and she has already entered into a written lease requiring her to take possession and pay rent for a specified term, she may be able to terminate the lease before possession. If the tenant terminates the contract, the landlord may file a lawsuit alleging improper termination and breach. In this case, only a court has the legal authority to void a contract. In other words, one party may still be liable for performance or adhering to the terms of a lease if a court finds that a contract is not void and is legally binding and enforceable.
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Justifiable Excuse for Termination
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A contract based on illegal terms may be unenforceable. For example, if a landlord inserts a provision into the lease requiring that a tenant waive his rights to safety and habitability, the entire lease may be unenforceable depending on state law. In most states, landlords cannot use illegal or unconscionable lease provisions abusing their bargaining powers. For example, in many states, a landlord who requires a tenant to waive his right to running water or heat may be in violation of local codes or state habitability laws. If one clause is deemed illegal, state law may consider the entire contract void -- not just the illegal clause.
Fraud and Duress
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You may also be able to break your lease before you move in and without paying any rent if your contract was based on fraud or duress. For example, if you signed a lease for a two-bedroom apartment, but your landlord changes your lease to a one-bedroom apartment, you may be able to break your lease. If your landlord blackmailed you into signing the lease, you may be able to terminate it as signed under duress. However, if you terminate it without a legal judgment, you may be liable for remaining rent.
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