Q: What takes precedence, lease or law?
My family needs to break our one year lease early. Our lease states that if we were to terminate early for any reason, we will be responsible for all remaining rent due to the end of the lease, forfeiture of all deposits and fees, plus two additional months of rent. Which will equal about $15,000. (A little excessive IMO). They are also not allowing us to try and find reasonable tenants for a lease takeover, out of our pockets. However, according to TN 'mitigating damages' law, the landlord needs to actively try to find someone to take over the lease and the tenant is only responsible for any time in which the property was unrented (and any damages, etc). So, which takes precedence? I would assume the law, but if that were the case, why even have that HEFTY fine written in the lease? Thanks!
A: Law trumps the lease. There is a mitigation of damages requirement in Tennessee.
In general the reason people put language in the lease that goes beyond what the law allows is that such action is not illegal. People think with good reason that strong worded language scares people into abiding by agreements and thus makes more money for the companies that the contract favors and should lead to less litigation because people do not generally know what the law says and simply follow the heavy handed language included in the lease.
This may be the type of a case where you would be better off if you consult with an attorney to review the facts and possibly write a demand letter on your behalf with an attempt to settle the issue much more favorable to you and more reasonable. Perhaps something along the lines of you terminate early and pay one month rent only in consideration for them releasing you from the lease. If you can show there were other tenants willing to take over the lease and they refuse them that would tend to show a failure to mitigate. Good luck!
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