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MIAMILAW1127
MIAMILAW1127, Lawyer
Category: Real Estate Law
Satisfied Customers: 731
Experience:  Founding Partner at Moises Law, P.A.
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Our property rental lease contains a clause that allows

Customer Question

Our property rental lease contains a clause that allows sub-letting. We obtained a written and oral agreement to sub-let the property to another party. The landlord/owner has since learned that the HOA for this property does not allow sub-letting. Does this constitute a breach of contract by the landlord/owner since his lease contains a clause that both parties agreed upon, but is in fact illegal based on the terms of the HOA?
Submitted: 11 months ago.
Category: Real Estate Law
Expert:  MIAMILAW1127 replied 11 months ago.

Hello. Thank you for contacting me. I am a consultant here and I am looking forward to assisting you with your question. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Please be patient as I will be typing my responses to you from scratch. Also, I can only answer/address the questions you ask specifically based on the information your provide. Please try to provide as much information as possible so I can best assist you.

Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

If you were to attempt to exercise the subletting provision of the contract and the landlord would not be able to fulfill his contractual obligations under the contract due to the HOA, then yes, it would be considered a breach of contract on the part of the landlord.

I hope this helps. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Thank you.

Customer: replied 11 months ago.
Attached is the actual lease agreement. What options are available to us if the landlord has stated an invalid clause (6) in our agreement?
Expert:  MIAMILAW1127 replied 11 months ago.

Well that depends entirely on what you are seeking.

You could potentially terminate the lease and move out. What are you looking to get out of the situation?

Customer: replied 11 months ago.
We are trying to help our landlord get a new tenant to move in by January 1, 2016. We have recently purchased a home thinking that we could sub-lease based on clause 6 in the agreement. We have recently been informed by the landlord that sub-leasing is not allowed by the HOA. The landlord has been very "picky and choosy" when we send in applications of possible tenants. We just don't want to pay a mortgage and rent at the same time. Will I need an attorney or can I just present the lease and indicate the breach of terms in small claims court?
Expert:  MIAMILAW1127 replied 11 months ago.

Why not just break the lease and the landlord releases you from it. Then the landlord can execute a new lease with the person he was trying to sublease to?

The landlord should be willing to release you from the lease and look for another tenant.

The only other choice you would have would be to walk away from the lease. The landlord could potentially sue you for breaching the lease which your argument would be that he breached first by not being able to follow through on the subletting provision of the lease.

Customer: replied 11 months ago.
He is willing to release us from the lease if someone else moves in first. We have submitted plenty of applicants to him for review, but he is taking his sweet time thinking we will pay rent until he finds someone to move in. Since sub-leasing is not an option now based on the provisions of the HOA, he told us we need to find another "qualified tenant" to move in before we are released from the lease.
Customer: replied 11 months ago.
Landlord is trying to use clause 21 (early termination) as the only viable option for us right now. Does the invalid clause 6 (which he should have been aware of HOA provisions before writing the lease) take precedence over clause 21?
Expert:  MIAMILAW1127 replied 11 months ago.

That seems to be the best option.

At the end of the day, he doesn't lose anything if you find him a good tenant. Whether you pay the rent or someone else does it's really the same thing at the end of the day as long as he's getting paid.

I would try to find someone he can approve of quickly (and don't hesitate to be persistent about it). That would be the path of least resistance. It seems like if you were to just walk away from the lease, he would sue which would ultimately end up costing you a pretty penny to defend (unless you get your attorneys fees covered). The courts tend to look at one sided attorney's fees clauses in contracts (like the one in your lease) in a pretty negative light. They've held that if it applies to one side, it applies to both. You may be able to get your fees covered, but it's a roll of the dice.

Expert:  MIAMILAW1127 replied 11 months ago.

Have I answered all your questions?