If you are feeling unsafe around someone who is living with you, one of the best legal protections you can get against that person is a restraining order.
These are legal orders issued by a judge that prohibit the person from threatening you, abusing you, contacting you and even being near you.
Now if that person happens to be living with you, you can truly feel endangered and will likely want to get as far away from them as possible. Of course, that may require you to terminate your lease and find other living arrangements, which is exactly what we are going to discuss.
What We’ll Cover
In this article, I am going to cover whether you can break your lease if you have a valid restraining order and discuss (step by step) what you should if you want to pursue this course of action.
As you can imagine, different states will have different rules around this, so it’s important for you to know your specific state’s requirements. However, I will be discussing the rules in some of the biggest states, so you can get a general sense of how states may deal with this issue.
If you don’t have the time to read through it all, here’s a short answer to the question:
As a general matter, you can break your lease if you obtain a restraining order, but depending on your state law requirements, you will likely need to provide your landlord with appropriate notice, a copy of the restraining order or other proof of domestic violence or other actionable wrongdoing by your abuser.
Ok, we’ve got a lot to cover, so let’s get into it.
The information contained in this post is for informational purposes only. It is not legal advice. You should seek the advice of a qualified legal professional before making any decisions relating to the topics covered by this article.
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What is a Restraining Order?
Ok, you probably know this already (in which case, you should skip ahead to the next section), but a restraining order, sometimes referred to as a protective order or order of protection, is a legal order that is issued by a court when there is usually a clear and present danger of violence against you by a close relationship (including someone who lives with you).
Note: A restraining order and protective order may have some technical differences, but in general, they serve to protect victims against potentially dangerous abusers.
The type of danger that is normally covered by a restraining order includes domestic violence, sexual assault, and even threatening behavior. The order will typically prohibit your abuser from doing physical harm to you, threatening you, and even contacting you. In addition, the order usually requires them to maintain a certain distance from you.
The process for getting one will depend on your jurisdiction, but you will need to go to court. If you meet certain conditions, you may be able to get a temporary one quickly. This is usually done ex parte, which just means your alleged abuser does not have to be part of that process.
For a more final or permanent solution, you will need to likely hold a hearing where the alleged abuser can show up and present their side of the story.
Check Your Lease First
Ok, now that we know what a restraining order is, we can start to analyze whether it gives us the right to break our lease.
The first thing you will want to do if you want to terminate your lease after getting a restraining order is to check your lease.
In some cases, your lease will actually have a provision that addresses this type of situation (mine does). Of course, not every lease will have this type of provision, and some leases may even have provisions that are at odds with state law requirements.
If your lease is silent on the point or if you suspect that your lease is not offering protections for you that are in line with legal requirements, then you need to investigate your state and local laws to see if they offer guidance on whether you can break your lease early after getting your restraining order.
On that note, let’s explore landlord-tenant laws in some key jurisdictions.
Under New York law, if the tenant is a victim of domestic violence and reasonably fears remaining in the household because of further domestic violence, they can terminate the lease agreement.
The process for doing so is as follows:
First, they must get a temporary or final protective order issued by a court or similar record of wrongdoing.
This can include a record, complaint, or report from a valid law enforcement agency, a record from a doctor for treatment related to the misconduct, or report from a qualified third party to whom the victim reported the incident (e.g., law enforcement, attorney, doctor, psychiatrist, social worker, and so on).
Next, they can provide notice of termination to the landlord which specifies the date of termination (which can’t be earlier than 30 days after notice is delivered). The notice must states that the tenant has experienced domestic violence and reasonably believes that they are unable to safely stay in the premises as a result.
Within 25 days after the notice, the tenants must the landlord provide proof of such victimization (such proof could include the documentation I described above (copy of protective order, record from law enforcement, etc.).
If the above conditions are met, the lease will terminate without further obligation by the tenant.
Under California law, a tenant may notify the landlord that they intend to terminate the lease if the tenant (incl. household and family members) was the victim of any of the following acts:
- Domestic violence
- Sexual assualt
- Human trafficking
- Abuse of an elder
- Crime that caused bodily injury or death
- Crime that included use of a firearm
- Crime that included use of force against the victim or threat of force against the victim
The notice of termination must be in writing and include at least one of the following:
- Copy of the temporary restraining order, emergency protective order, protective order
- Copy of a written report by a police officer
- Documentation from a qualified third party (which includes counselors, caseworkers, advocates, doctors, nurses, social workers, therapists, etc.)
The termination notice must be given within 180 days of the date of the order, the written report, or date of the crime, as applicable.
If such notice is given properly, the tenant shall generally be responsible for rent for no more than 14 days following the giving of the notice.
Under Virginia’s landlord tenant laws, any tenant who is a victim of family abuse, sexual abuse or other criminal assault may terminate such tenant’s lease under the following circumstances:
- They have obtained an order of protection and have given prior written notice of termination to their landlord; or
- A court has convicted the perpetrator of sexual assault, sexual abuse or family abuse (as defined under VA law).
The notice of termination must be effective not less than 30 days after the first date on which the next rental payment is due. They must also provide the landlord with a copy of the order or protection or conviction order, as applicable.
So there you have it, a clear answer to the question of whether you can break your lease if you have a restraining order and some steps your can take to get the process rolling.
Now, as mentioned, your state laws may have different requirements from the states we discussed, so it’s important for you to check out what your jurisdiction’s rules are.
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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Now if you want to get out of your lease, but you don’t have a restraining order in place, there are other ways to terminate your lease early.
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).