In this article, I am going to discuss whether you can break your lease if you are going to jail or are otherwise going to be incarcerated for a period of time.
I will also cover some practical steps you can take if you are facing this situation, including options for terminating your lease even if it is not expressly allowed under your lease, how to negotiate with your landlord, and how to protect and preserve your stuff when your lease ends.
If you don’t have the time to read through it all, here’s a short answer to the question:
In most cases, you will not be able to break your lease simply because you are going to jail. Leases are binding contracts and unless there is something in the lease that allows termination on other grounds (most don’t permit termination if you go to jail) or state and local laws permit early termination, you are likely out of luck.
Ok, we’ve got a lot to cover, so let’s get into it!
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Check Your Lease to See if You Can Terminate on Other Grounds
As I mentioned above, leases are binding contracts and most long term leases have the tenants on the hook for the entire amount of rent if they terminate early when it is not permitted.
Of course, there are some tenant protections available in this case, like mitigation of damages (more on that later) but as a general matter, you are looking at the possibility of paying rent for the remaining months unless you can somehow figure out a way to get out.
So what to do?
While most lease agreements probably won’t allow you to terminate your contract simply because you go to jail, there may be other provisions that can help you get out of your lease.
Obviously, if your lease is a month to month, then you can get out pretty easily. All you would need to do is give your landlord the required notice and the lease will likely terminate at the end of the applicable month (which could be the current month or the next month).
Some leases contain an early termination provision. This allows you to freely terminate for any reason, but you usually have to pay some sort of early termination or cancellation fee. Typically those fees equal one to two months rent.
If you have something like this, then you may be able to get out by paying that fee.
Leases often contain termination rights on other grounds, such as if the landlord fails to fulfill their obligations. This may include failing to repair needed items, providing an unsafe or uninhabitable dwelling, etc.
Check out my full article on how to break your lease early without penalty for more details. It includes 11 situations where you can terminate early (plus one bonus option that applies in all situations).
If your lease is not offering anything that you can use to terminate early, don’t give up hope.
Another place you can check is your state’s landlord-tenant laws. On that note…
Check Your State and Local Laws to See if You Can Terminate Your Lease Early
Each state has its own landlord tenant laws and there can often be wide variation in what those laws require.
But in general, I am not aware of any landlord tenant laws that openly permit termination of a lease simply because you go to jail.
But you may want to explore if there are other provisions in your landlord tenant laws that may apply.
For example, if your dwelling is uninhabitable due to mold, pests or other unsanitary conditions, you may be able to break your lease early, depending on your landlord tenant laws. Similar provisions often exist if you are the victim of domestic violence, you are facing harassment or danger, or you are facing physical or mental health issues that can be addressed by moving out.
For your convenience, here’s our 50 state reference table (including D.C.) that will link you to the official landlord tenant laws of your state.
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If your state and local laws aren’t helping, the final step is to try to negotiate with your landlord. Of course, if you are incarcerated, this may be difficult to do, but you will need to work through an someone else you trust (which can be your lawyer, family member or friend).
Negotiate With Your Landlord
Often you can successfully negotiate with your landlord to terminate your lease early if you are going to jail.
They know that the unit will be vacant soon and they know you will not be making much money to afford rent for future months, so they may be willing to play ball.
One of the best options is just a simply mutual termination agreement. This means that you and the landlord decide to just end the lease without further obligation by each of you.
Once they find out you are headed to jail, your landlord is probably going to want to re-rent your unit as soon as possible so they may be willing to do this. After all, it saves them the effort of initiating an eviction proceeding to formally gain possession of the property again.
Another option is to offer to find a replacement tenant. Of course, you may not be in a position to do this yourself, but you may be able to enlist the aid of a friend or family member to help. It’s not hard to do – you just need to list the property on places like apartments.com or zillow.com, talk to prospective tenants and let them see the unit.
A final option is to simply walk away from the lease and hope that your landlord finds a new tenant quickly. Your landlord cannot charge you and the new tenant for the same place, so if they find someone new, your rent obligations will end.
A landlord must try to find a replacement tenant if you have abandoned the property while you lease is still active. This is called mitigation of damages and it protects you from your landlord just sitting on their hands and doing nothing because they expect you to continue to pay them the rent.
There is a lot of risk using this strategy because the landlord may not be able to find a new tenant quickly, especially in a tough rental market. That means you could be on the hook for any rent before they find a replacement tenant.
On top of that, they will likely sue you and that will leave a very bad mark on your record, which could hurt your chances of getting a new apartment when you get out. And after having a criminal record, you don’t need anything further to hurt your chances of finding a new place to live.
What About My Stuff?
Ok, we’ve talked about ending your lease, but what about all of your stuff that is in your rental. If you are living alone, that can be a real concern.
In general, you will want to arrange for the storage, sale or removal of your stuff before the lease ends. In most cases, once you stop paying rent (whether your landlord has terminated the lease or not), they will initiate eviction proceedings, which can result in your stuff being tossed or auctioned off by your landlord.
If you don’t want that to happen make sure you either arrange for it to be handled as discussed above. You may not be able to take care of that personally, so try to arrange for your lawyer or someone else to properly handle your personal property for you.
So there you have it – a clear answer to whether you can terminate your lease if you go to jail and some practical tips on how to deal with that unfortunate situation. Hope this has been helpful!