Tenant’s Right To Break A Lease In New Jersey

New Jersey tenants may be able to legally break their lease due to early termination clauses, death of tenant, disability, military service, constructive eviction, domestic violation, and unenforceable leases.

Tenants that break a rental lease in New Jersey can lose their security deposit, as well suffer damages for a landlord’s lost rental income.

Breaking a lease – without cause – has legal consequences.

However, there are reasons you can break a lease without a penalty. Learn when and how tenants may break their lease legally in New Jersey below.

Early Termination Lease Clause

An early termination clause permits a tenant to legally end a lease.

Early termination clauses benefit landlords by controlling how early termination works. Landlords can insist on an early termination fee to cover lost rent, and a notice period to replace the tenants.

Tenants benefit from future flexibility. A tenant may want to break a lease to buy a house, travel, relocate, or move to a larger residence.

Consider these issues when negotiating an early termination clause:

  • Amount of the early termination fee;
  • Length of the notice period;
  • Assistance from tenant in showing the premises;
  • Conditions required for the tenant to executed the early termination clause;
  • Circumstances that void the early termination, such as failure to pay the fee or vacate.

The following is a sample early termination clause: “EARLY TERMINATION. Tenant may terminate the lease and the remaining responsibility for rent due for the balance of the lease by providing a minimum of 60 days written notice before the termination date and an early termination fee equal to two months’ rent. The early termination is complete upon Landlord’s receipt of written notice, payment of the early termination fee and all other rent owed, and Tenant vacating the property. Should the tenant fail to give property notice, pay the early termination fee, or pay outstanding rent, the early termination is deemed void.”

Death of Tenant or Spouse (N.J.S.A. 46:8-9.1)

Leases in New Jersey may be able to be terminated if the tenant dies.

According to N.J.S.A. 46:8-9.1, tenants may terminate a lease for their personal residence in the event of the tenant or his spouse’s death. Breaking a lease under this provision requires:

  1. Death of the tenant or his spouse;
  2. Lease term is for one or more years;
  3. Premises used solely as a dwelling place for tenant and/or his family; and
  4. Forty days written notice from the tenant, spouse, or estate representative.

Rent must be paid until termination of the lease, and the property must be vacated and possession turned over to the landlord at least 5 working days before the fortieth day after written notice.

Termination of Residential Leases Due to Disability (N.J.S.A. 46:8-9.2)

Tenants in New Jersey can sometimes break a lease for medical and mental health reasons.

N.J.S.A. 46:8-9.2 permits lease terminations in situations involving disabilities, entering assisted living facilities, acceptance into low income housing, and the premises not being handicapped accessible.

These terminations require a lease term of at least one year, premises used solely as a dwelling, and 40-days notice. Tenants pay rent until the date of termination, and must vacate and turnover the property at least five working days before the end of the lease.

Disability (N.J.S.A. 46:8-9.2 (a))

The onset of a disability might allows you to get out of a lease early in New Jersey in some situations.

According to N.J.S.A. 46:8-9.2(a), tenants may break their lease if their situations meets each of the following:

  1. Tenant or tenant’s spouse suffers a disability;
  2. Loss of income;
  3. Lost income is necessary to pay the rent;
  4. Pension, insurance or other subsidy to the tenant or spouse is insufficient to make rent payments;
  5. Written notice attaches a certification of a treating physician that the tenant or spouse is unable to continue in gainful employment; and proof that the lost income combined with any pension, insurance, or other subsidy do not allow for payment of the rent.

Assisted Living Facility (N.J.S.A. 46:8-9.2(b))

A tenant may be able to terminate their lease if the tenant or their spouse is 62 years or older and enters an assisted living, nursing home, or continuing care facility.

Terminating a lease for this reason requires:

  1. The tenant or their spouse is 62 years or older;
  2. The tenant or their spouse is accepted into an assisted living facility, nursing home, or continuing care retirement community; and
  3. Written notice includes a certification of a treating physician that the tenant or spouse is in need of the assisted living facility, nursing home or continuing care retirement community; and documentation of acceptance into the housing.

Low or Moderate Income Housing (N.J.S.A. 46:8-9.2(c))

Entry into low income housing can result in the tenant having the right to break the lease.

This arises where a tenant or their spouse is 62-years or older, submits an application for low to moderate income, and is accepted.

The following are the requirements to terminate under N.J.S.A. 46:8-9.2(c):

  1. Tenant or spouse is 62 years or older;
  2. Tenant or spouse is accepted in housing reserved for low or moderate income households;
  3. Tenant is not already residing in low or moderate income housing; and
  4. Written notice attaches documentation of a lease or intent to lease from the housing facility or sponsor.

Not Handicap Accessible (N.J.S.A. 46:8-9.2(d))

Tenants can in some cases terminate their lease in New Jersey if they become disabled and the premises are not handicapped accessible.

The standard for breaking a lease due to handicap accessibility is set forth in N.J.S.A. 46:8-9.2(d):

  1. Tenant or member of the household suffers a disability;
  2. Dwelling is not handicapped accessible to the disabled person;
  3. Landlord was asked to make the dwelling accessible at their own expense;
  4. Landlord was unable or unwilling to make the dwelling accessible;
  5. Written notice includes a certification from a licensed physician that the disabled person is handicapped and that handicap is likely not temporary; and statement that the landlord was asked and failed to make the property accessible.

Military Service (Servicemembers Civil Relief Act – 50 U.S.C. § 3955)

The federal Servicemembers Civil Relief Act permits tenants entering the military to break their lease in certain situations.

Military personnel may terminate their lease within 30-days, provided that:

  1. Lease is executed by a person who enters military service, receives a change of station, or deployment of at least 90-days;
  2. Written notice is provided 30-days in advance;
  3. Written notice includes a copy of military orders or letter from a commanding officer.

A spouse may also terminate a lease within 1-year if the service member tenant dies while in military service.

Constructive Eviction

Tenants can get out of a lease early in New Jersey due to “constructive eviction” by the landlord.

Constructive eviction occurs where a landlord allows the premises to become unsafe, unfit, or unsuitable for the purpose it was leased. For example, premises falling into such disrepair that the tenant cannot safely reside.

The New Jersey Appellate Division explained constructive eviction as follows:

An act or omission by a landlord . . . constitutes a breach of the covenant of quiet enjoyment and constitutes constructive eviction if the conduct renders the premises substantially unsuitable for the purpose for which it was leased or if it seriously interferes with the beneficial enjoyment of the premises. The unfitness of the premises is shown when the condition complained of is permanent or regularly recurs, causing serious interference with the use.

Thi Do v. Phuong Trong Nguyen (N.J. Super. App. Div. 2012)

Before terminating a lease for constructive eviction, tenants must notify the landlord of the deficient condition and allow a reasonable time to fix the problem.

Tenants have two choices if the landlord fails to address the problem:

  • terminate the lease, vacate, and recover damages caused by the constructive eviction; or
  • continue the lease, continue to pay rent, and recover rent abatements and damages.

Domestic Violence (N.J.S.A. 46:8-9.4)

Domestic violence and other threats of harm could allow a tenant to legally break their lease in New Jersey.

Tenants under the New Jersey Safe Housing Act may terminate a lease used solely for a dwelling place by providing written notice that the tenant or their child faces imminent threat of serious physical harm if the tenant remains, and one of the following:

  • Permanent restraining order issued under the Prevention of Domestic Violence Act of 1991;
  • Restraining order from another jurisdiction if issued to domestic violence law;
  • Law enforcement agency record documenting the domestic violence, or certifying that the tenant or child is a victim of domestic violence;
  • Medical document of the domestic violence provided by a health care provider;
  • Certification of a Domestic Violence Specialist, or director of a designated domestic violence agency, that the tenant or child is a victim of domestic violence; or
  • Document or certification, provided by a licensed social worker, that the tenant or child is a victim of domestic violence.

Leases terminated under the New Jersey Safe Housing Act take effect 30-days after notice to the landlord, and rent is paid prorated up until lease termination. Co-tenants on the same lease also have their lease terminated but may enter a new lease at the option of the landlord. N.J.S.A. 46:8-9.7.

Unenforceable Contract

Leases are considered contracts in New Jersey.

Like most contracts, enforceable leases require the following elements: meeting of the minds, offer and acceptance, consideration, and certainty.

Model Civil Jury Charges 4.10(c) helps define these elements:

  1. Meetings of the Minds: Landlord and tenants must understand what each is agreeing to do or not to do on the material terms.
  2. Offer and Acceptance: An offer occurs when one party communicated a willingness to enter an agreement, and the other party gave outward indication (by words or conduct) that the agreement was accepted. Counter offers – proposing different terms – are not acceptance of a lease.
  3. Consideration: Parties to the lease each gave or promised something of value.
  4. Reasonable Certainty: Terms of the are lease sufficiently clear so that the obligations of each party, and whether those obligations have been satisfied, could be determined with reasonable certainty.

Statute of Frauds (N.J.S.A. 25:1-12)

Non-written leases of three or more years are often unenforceable in New Jersey.

Oral leases in New Jersey are generally enforceable (though not recommended as written leases leave less room for misunderstanding and are easier to prove).

However, the state’s statutes makes oral leases with terms of greater than three years unenforceable absent clear and convincing evidence.

According to N.J.S.A. 25:1-12:

“A transaction intended to create a lease of real estate for more than three years shall not be enforceable unless:

a. the leased premises, the term of the lease and the identity of the lessor and the lessee are established in a writing signed by or on behalf of the party against whom enforcement is sought; or

b. the real estate, the term of the lease and the identity of the lessor and the lessee are proved by clear and convincing evidence.”

This blog addressed how a tenant could break a lease legally in New Jersey, as well as some of the consequences that can result by terminating a lease without cause.

If you want to get out of lease early in New Jersey, have an open dialogue with your landlord. Search for a mutually beneficial “win win” arrangement to end the lease early without substantially inconveniencing the landlord.