Question: Recently my mother signed a lease and paid a deposit for an apartment and decided it was not the right choice for her. She contacted the landlord within two days (verbally) and gave a written letter within three days. The landlord said it was fine but then changed his mind and now wishes to hold her to the lease. I thought that there was a consumer protection law that allows a cooling off and rescission period for leases?
Tenants’ attorney Kellman replies:
While some jurisdictions may have provisions that allow consumers to change their minds with no consequences, generally there is no cooling-off period for leasing real property. Once the landlord and tenant sign a lease and a copy is delivered to the both parties, it becomes a valid contract. Contacting the landlord by verbal or written means within three days of signing it will not automatically terminate the contract. Now in your mother’s case, the landlord said the lease termination was “fine.” While technically that may be a verbal termination of the lease, it will be hard to prove because the landlord changed his mind and then apparently forgot that agreement. It is always better to get such agreements in writing. Looking beyond that verbal agreement, there may be grounds to rescind or “break” the lease based on your mother’s decision that the unit was not right for her. For example, if the unit was misrepresented as being something it is not or having something it does not have, she may declare a rescission of the contract. Further, if the unit significantly fails in the stated rental value of the unit due to defects or other problems, she may also declare a rescission for these reasons. A valid rescission will terminate her obligations under the contract and even give her rights to claim damages. In cases of rescission, you must set forth the grounds in a written notice of rescission to the landlord and return the keys as soon as possible. As always, before taking any such action, seek legal assistance to protect your rights.
Landlords’ attorney McKinley replies:
Like Kellman says, I am not aware of any cooling-off period after signing a residential lease. When you sign a lease, you have signed a binding contract. Unless the landlord signed a document agreeing to terminate the lease, the lease will still be in effect. Most leases specifically state that the lease may not be modified verbally, and that any modification must be in writing for it to be valid. Unless the landlord actually made some misrepresentation with respect to getting your mother to sign the lease, or there is some hidden defect in the property, it will be difficult for your mother to break the lease. Presumably your mother had a chance to inspect the property prior to signing the lease, and if there were no problems then, it would seem suspicious if there are problems now, especially given the fact that she has not moved into the property. I would suggest negotiating a termination of the lease with the landlord, rather than unilaterally declaring the lease rescinded.
Question: I’m in a position where I may have to leave the area due to a job change. If I remember it right, there is a provision in the law for just such a case where the renter would not be liable for the balance of the lease if he/she gave suitable notice. Is that true and can I break the lease on those grounds?
Tenants’ attorney Kellman replies:
You remembered it wrong. The law that governs leases does not automatically give you the right to cancel that lease based on your personal change of circumstances. If this were true, leases would be pretty worthless since you could claim a change of personal circumstances (i.e. job change, divorce, found a better deal elsewhere) anytime and cancel the contract. The landlord could not rely on your responsibility to that contract if it can be broken so easily. The contract also binds the landlord who cannot evict you based on their change of circumstances either. The contract is an acceptance of responsibility for a set time regardless of changed circumstances. Each party must be able to rely on the other’s compliance for a contract to have any meaning. The notable exception under federal law (which applies to all states) is for military personnel under the guidelines of the Servicemembers Civil Relief Act of 2003. Another exception would be if your lease specifically allowed for a cancellation based on a job change. There are several ways a lease can be terminated with a minimum of obligation. See an attorney before trying to break any lease.
This column on issues confronting tenants and landlords is written by property manager Robert Griswold, author of “Property Management for Dummies” and co-author of “Real Estate Investing for Dummies,” and San Diego attorneys Steven R. Kellman, director of the Tenant’s Legal Center, and James McKinley, member of the Moffitt & Associates law firm, which represents landlords.
E-mail your questions to Rental Q&A at rgriswold.inman@retodayradio.com.
Questions should be brief and cannot be answered individually.
