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When is it Too Late to Break Your Lease?


We have all had that dreadful experience of living in an apartment that turned out to be way worse than anticipated. You thought you had the perfect apartment until you start experiencing issues. Issues with safety, health, and quality of the use and enjoyment of the unit are some examples where Tenants often find that their “perfect” apartment is riddled with issues and concerns. However, once you sign the lease agreement, what constitutes a valid reason to withdraw the lease?

Tenant rights and responsibilities when signing a lease in Illinois favor the tenant greatly. Under a typical lease, a landlord cannot raise the rent or change other terms, until the lease expires or is terminated. Furthermore, a landlord cannot force a tenant to move out before the lease ends, unless the tenant fails to pay the rent or violates another significant term. Even if a landlord believes they have a valid reason to evict you from the apartment, the landlord must give the tenant at least five days’ notice to pay the rent or leave. 735 Ill. Comp. Stat. § 5/9-209. The Statute states that to prevent invalidation from the landlord’s perspective, “Only FULL PAYMENT of the rent demanded in this notice will waive the landlord’s right to terminate the lease under this notice, unless the landlord agrees in writing to continue the lease in exchange for receiving partial payment.” Id. As is clearly evidenced by the Illinois Statutes, tenants are legally bound to pay rent for the full lease term, whether or not you continue to live in the rental unit. However, there are a few caveats.

The first exception when breaking a lease is justified in Illinois is based on federal regulations. If you enter active military service after signing a lease, you have the right to break the lease under federal law per the War and National Defense Servicemembers Civil Relief Act.  50 App. U.S.C.A. § 50. To satisfy this exception, the tenant must provide the landlord with written notice of the tenant’s intent to terminate your tenancy for military reasons. Id. After the notice is delivered, the tenancy will terminate 30 days after the date that rent is next due. Id.

In addition to federal regulations, Illinois has also enacted several statutes that allows a tenant to legally terminate their lease. If you or your child are a victim of domestic or sexual violence (or who face an imminent threat of such violence at the premises), 765 Ill. Comp. Stat. §750/15 provides early termination rights. A tenant has an affirmative defense against any action brought by a landlord if “at the time that the tenant vacated the premises, the tenant or a member of tenant’s household was under a credible imminent threat of domestic or sexual violence at the premises.” 765 ILCS 750/15. Additionally, the tenant must give “written notice to the landlord prior to or within 3 days of vacating the premises. Id.The reason for vacating the premises must be because of a credible imminent threat of domestic or sexual violence against the tenant or a member of the tenant’s household. Id. The tenant must provide evidence (such as a police report). Id. Upon a successful challenge, the tenant will not be responsible for the remaining rent payments.

Another major situation where a tenant may be able to break the lease without damages is if the rental unit is unsafe or violates the Illinois health or safety Codes. In Board of Directors of Bloomfield Club Recreation Association v. The Hoffman Group, the Illinois Supreme court held that the implied warranty of habitability is applicable against a lessor or builder of a residential unit where latent defects interfere with the inhabitant's reasonable expectation that the unit will be suitable for habitation. 186 Ill. 2d 419, 426 (1999).What is critical about this rule, therefore, is not simply that there be a hidden defect in or around a residence, but that the defect interfere with the dweller's use of that unit as a residence. Id. In a related manner, the tenant will also have the right to terminate the lease if the landlord harasses you or violates your privacy. Under the former Forcible Entry and Detainer Act (now 735 ILCS 5/9-102. When Action may be Maintained), intention was a necessary element of constructive eviction, but whether a landlord intended a specific result was not a determinative factor if it could be shown that the landlord willfully refused to perform or so negligently performed his promise that what he did was of no benefit in protecting the tenant in the enjoyment of the demised premises. Id. As Christ Barta agrees in his NOLO article, “Illinois does not specify the amount of notice your landlord must give you to enter rental property. If your landlord repeatedly violates your rights to privacy, or does things like removing windows or doors, turning off your utilities, or changing the locks, you would be considered ‘constructively evicted’ and this would justify you breaking the lease without further rent obligation."

Lastly, even if you do not have a legal justification to break your lease, you may still be to avoid paying all the rent due for the remaining lease term. Under Illinois Statute 735 Ill. Comp. Stat. § 5/9-213.1, the landlord has a duty to mitigate damages. In other words, your landlord must make reasonable efforts to re-rent your unit—no matter what your reason for leaving—rather than charge you for the total remaining rent due under the lease. Id. Your landlord must try to re-rent the property reasonably quickly and subtract the rent received from new tenants from the amount you owe. Id. Although the landlord must attempt to mitigate damages, the landlord is not required to rent the unit for less than fair market value, or to immediately turn his or her attention to renting your unit disregarding other business. Id. Mr. Barta adds that ideally, if your landlord re-rents the property quickly (more likely in college towns and similar markets), all you’ll be responsible for is the (hopefully brief) amount of time the unit was vacant. The bad news is that if the landlord tries to re-rent your unit, and can’t find an acceptable tenant, you will be liable for paying rent for the remainder of your lease term. Id.

Apartment hunting is never fun. What is worse is when you think you have found the perfect apartment, only to discover uninhabitable concerns upon move in. If you have concerns about your rental and are looking at available options to break your lease with the landlord, contact us at 312-627-1650 for a free consultation and case review.
Categories: real estate