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Loren, Lawyer
Category: Landlord-Tenant
Satisfied Customers: 28511
Experience:  Attorney with 30 years of experience representing landlords and tenants.
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We signed a 1 year lease (beginning Jan. 2, 2016), but circumstances

Customer Question

We signed a 1 year lease (beginning Jan. 2, 2016), but circumstances caused a move at the end of 3 months (Mar 31, 2016). 60 day notice was given at the end of 1 month (Jan.26, 2016) with the ability (by us) to move anytime during the 60 day notice. The landlord stated that if they were able to lease the apartment in that 60 days there would be only fees prorated for the remainder of the 60 days. There was a 60 day notice and early termination fee equal to 2 months rent, as well as, a reimbursement for a rent reduction special consideration in the signed lease. We moved out at the end of the 60 days and passed the walk through of the apartment with no problems. When we turned in the keys and the walk through papers we were told we were "good to go." 2-3 weeks later we received a balance statement showing we owed the termination fee and the rent reduction fee. Upon calling the complex, we were told that they had rented the apartment, but it was a pending rental beginning two months from now. We were again informed that if they had been able to rent the apartment anytime in the 60 day notice period or the 2 month early termination fee period that we would not be responsible for any fees or at least a prorated fee. The manager stated they were willing to allow us to make payments, but that we were still responsible. We have since received confirmation from the electric company and the internet provider that there is a tenant in that apartment receiving services that began 8 days after we vacated the apartment. Are we responsible for the early termination fee and special rent consideration reimbursement since the apartment is occupied according to the utility companies? The apartment complex still reports to me as of yesterday, that the apartment has not been re-rented. This is occurring in the state of Indiana.
Submitted: 5 months ago.
Category: Landlord-Tenant
Expert:  Loren replied 5 months ago.
Good morning. I am Loren, a licensed attorney, and I look forward to assisting you.
Does the lease provide for a credit against the termination fee if it is rented during that period?
Customer: replied 5 months ago.
No, this was verbal from the manager and another leasing agent.It does state that "all fees must be assessed and paid within the 60 day notice period and/or prior to move out."
Expert:  Loren replied 5 months ago.
Thank you for the additional information. I am sorry to hear of your dilemma.   I realize how frustrating this is for you and I hope to provide you information which is accurate and useful, even though it may not be the news you were hoping to get.
Expert:  Loren replied 5 months ago.
Unfortunately, where there is a written contract, verbal side agreements are inadmissible as evidence in court and, therefore, legally irrelevant.
If the lease required a move out payment for early termination then that provision may only be amended in writing.
If they have a new tenant then that would cut off continuing rent liability but, without a written provision to the contrary in the lease, it would not affect any notice or early termination fees. Those are owed in accordance with the lease terms which were agreed to when signed.
Expert:  Loren replied 5 months ago.
I realize this is probably not the answer you were hoping to receive. Also, please remember that this is not  a moral judgement on my part. As a professional, however, I am sometimes placed in the position of having to deliver news which is not favorable to a customer's legal position, but accurately reflects their position under the law. I hate it, but it happens and I only ask that you not penalize me with a bad or poor rating for having to deliver less than favorable news.
Customer: replied 5 months ago.
Does it make any difference that those fees were supposed to have been collected in that 60 day notice or at least prior to move out? When we checked out of the apartment and nothing was indicated in the leasing office, we were, perhaps woefully ignorant, that there were not going to be any fees.
Expert:  Loren replied 5 months ago.
Thank you for following up.
I do not believe it would matter, since it does not appear that they intended to waive the fees, but you assert the defenses you have available. In other words, you can raise that but, if it came to a court claim, I do not believe it would get much traction.
I am sorry to be the bearer of bad news.
Customer: replied 5 months ago.
So it looks like, short of throwing myself on the mercy of the manager of the complex, we will be responsible for the entire early termination fee and the special rent consideration?
Expert:  Loren replied 5 months ago.
If that was what the lease provided in its written terms then, yes, it is enforceable.
Expert:  Loren replied 5 months ago.
If you are able to negotiate a settlement it is very important that it be put in writing and signed by the landlord or its agent.
Customer: replied 5 months ago.
I guess we have a "live and learn" moment here. Thank you for your assistance.
Expert:  Loren replied 5 months ago.
You are very welcome. If you have no further questions, and have not yet done so, please remember to leave a favorable rating (Excellent or Good) so that I am credited by JustAnswer for assisting you. A bonus is not required, but is always appreciated.

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