Author: Bob Miles
DISCLAIMER: This article is intended for reference purposes only and does not constitute legal advice.
In landlord-tenant legalese, “abandonment and surrender” refers to the process by which a lease is terminated prior to the end of its term. For example, suppose Tenant Ted signs a lease from January 1 to December 31 with rent payments due on the first of every month, pays the rent on time for the first four months, and then moves to Outer Mongolia on April 8. What can Laura Landlord do about it?
First of all, she cannot move in another tenant before Ted’s next rent payment becomes due (May 1) – no double dipping allowed. The property is Ted’s to possess at least until he becomes delinquent in paying rent.
Second of all, as long as Ted continues sending a rent check every month, he can become live in a tent in Outer Mongolia and Laura will still not have the right to move in another tenant until January of the following year, when Ted’s lease expires.
So what if Ted stops paying monthly rent?
Well, if he’s just a couple of days late, then under most leases and under the laws of most states, Laura will still have to wait a certain specified period (maybe a month) before she can terminate the lease and move in another tenant. At that point Ted will owe Laura damages equal to one month’s rent plus any expenses he caused Laura by terminating his lease early (suppose, for example, that she couldn’t find a new tenant willing to pay as much as Ted was paying – Ted will owe Laura the difference multiplied by the number of months remainng on the lease). Because Laura chose to terminate the lease, she can no longer demand that Ted pay the entire year’s rent.
But Laura doesn’t have to terminate the lease at all if she doesn’t want to. Suppose she’s charging Ted rent at a rate that is way above market value? She may decide to sue Ted for back rent instead. In this case she is NOT terminatng the lease (and Ted can’t terminate it without proper grounds). She sue Ted in small claims court every month as rent comes due, or she can wait until the end of the lease term and sue him for it all at once (as long as the statute of limitations hasn’t expired). What she probably can’t do is, for example, sue Ted in June and ask the court to make Ted pay in advance all the way through December – she’ll probably have to wait for Ted to fail to pay each month before she can sue him for that month’s rent.