Break lease agreement due to COVID-19

Question

The mom holds B-1 visa (business visitor), can only legally stays in the USA one-half year. So the mom has to travel back and forth from the USA and her home country to get a new visa every half year so she can legally stay in the USA to accompany her 15-year-old son to high school.

The mom scheduled a trip on March 29, but because of COVID-19 the flight was cancelled. Once she got notice from the airline company, she realized that it's impossible for her to re-enter the USA in a short time. She found a host family for her son and noticed the landlord on March 15th that she would like to cancel the lease contract because of life change. The landlord never took action to re-rent the unit.

Yesterday (07/01/2020) the landlord emailed the mom, asked for 8 months compensate since there are 16 months lease left.

My question is: Are the reasons (mom can't stay because of COVID-19 and the son is too young to live by himself) legally justifiable reasons? Is the 8 months compensate reasonable?

Answer 1

Are the reasons (mom can't stay because of covid-19 and the son is too young to live by himself) legally justifiable reasons?

Unfortunately, not in this case.

The landlord can prevail by arguing that the mom, insofar as a holder of a non-immigrant visa, knew or should have known of the risks of being denied entry in the US. In terms of the Restatement (Second) of Contracts at § 154 (a) & (b), the mom is the "Party [who] Bears the Risk of a Mistake".

Since the risks of which the mom was aware include even arbitrary ones such as the USCIS officer's discretion, an allegation of "supervening circumstances" as per the coronavirus crisis is very unlikely to add any merit to the mom's legal position.

Is the 8 months compensate reasonable?

Although this is admittedly subjective, at first glance it appears reasonable or perhaps even generous (the landlord is proposing the midpoint: half of the remaining 16 months) considering that the landlord is entitled to the completion of the lease.

The "8 months as compensation" is essentially the landlord's proposal to settle his otherwise viable claim of breach of contract. You as lease holders can always attempt to negotiate and make alternative proposals, which is what you are doing already.

Here, the landlord seeks to obviate court proceedings that can be a drag for both him and especially for the mom because she would be unable even to present her arguments in court and/or quasi-judicial proceedings.

A settlement would benefit the landlord also from the standpoint that he would no longer be required to prove mitigation of damages (if that is a requirement in his jurisdiction). And, unless the settlement provides otherwise, the landlord would be free to immediately re-rent the unit without having to reimburse the mom (or the person(s) whose name is in the lease).

That being said, it is important for the lease holder(s) to secure in writing (specifically in the settlement document) a statement from the landlord in the sense that, by virtue of the agreed compensation, the landlord waives any and all claims related to the early termination of the lease. It is always smart to be cautious and preclude the landlord from eventually bringing a claim alleging that the agreed compensation was for something else or that it did not fully settle the controversy(-ies).

Answer 2

No laws have been changed to create extra rights for tenants owing to covid-19. There are many ever-changing orders regarding eviction, whereby you can't presently be evicted, but these are temporary orders. Otherwise, the general rule is that if you have a lease for a certain period of time, you owe the rent during that period whether or not you are actually living there. Changing circumstances does not invalidate lease obligations (which is good for both parties, since otherwise a landlord could decide "changing circumstances, the rent is now double").

For a tenant to cancel a lease, there has to be a clause in the lease allowing cancellation, which will state the conditions that the tenant must satisfy in order to terminate the lease. Simply writing to a landlord does not cancel a lease. If the conditions for cancellation have been satisfied, that's the end of the story. Given what you say, it appears that your mother just walked away from the lease, and has broken the lease by not paying rent. The landlord can therefore sue her to recover his losses (the rent for the unpaid period).

The next part is state-dependent. In some states, but not all, the landlord may have an obligation to mitigate losses, so he has to make a good-faith effort to re-rent the place which would lessen (but not obliterate) the amount that she owes. So call a lawyer.

Answer 3

A common solution is to search for a replacement tenant. If you're still living in the house, it wouldn't be impossible to show prospective tenants around the property and let them know that they will be taking over the contract for your remaining tenancy period. This does require the approval of your landlord, so he needs to agree to these new tenants renting for the remainder of your contract. He might give you extra liabilities, such as that you will be paying the remainder of the contract should the tenants stop paying. Should he refuse multiple tenants that want to rent the house, this is unfair to you and so if he tries to claim the 8 months rent through the court, the judge may take your side as he is being unreasonable, as long as you can prove that you had multiple suitable tenants. This does depend on your area however. I would seek the help of a lawyer.

Generally, paying 8 months is an awful and unfair deal, since he might even find tenants after a month of you moving out, doubling his profits for those 7 months. You should talk with a lawyer what happens if you stop paying, move out, and he re-rents the unit. Having you pay to cover missed rent should be legally different to having you pay for a month where he has another tenant pay for that same property.