Can a Divorce Decree Break a Rental Agreement?

undefinedAre you renting a property in Oregon, but due to certain life circumstances, such as a divorce, you’re needing to break your lease early? If this is the case, it’s important to understand Oregon tenancy law can provide support to both tenants and landlords who find themselves in difficult and unplanned situations. We sat down with landlord-tenant law attorney, Troy Pickard, to shed some light on the subject.

Tenancy Rights for Divorcing Couples

If you’re renting a home with your spouse and you’re navigating a divorce, there a few important aspects of rental agreement to understand.

For starters, a rental agreement in Oregon can be either written or verbal, although it’s highly recommended to have written proof from both landlord and tenant of the agreed upon terms. If you’re on a month-to-month lease and both spouses are hoping to move out, it should be easy to end your lease and move out of the residence if needed. It’s the longer-term rental agreements, such as year-long leases, that can pose complications for couples. According to Pickard, most landlords won’t mind if one spouse leaves the premise and the other stays, so long as they continue to receive rent from the spouse who stays on the property. If both spouses are looking to move out, however, you may be subject to certain fees.

“[The issue that] every tenant who breaks a fixed term lease could be looking at is that the landlord would have the right to continue charging the tenants for all of the rent that comes due for the rest of the tenancy period that's already been agreed on,” says Pickard. “The landlord does have to use reasonable efforts to find a tenant to replace the tenants that are leaving. But as long as the landlord uses reasonable efforts, if they for some reason don’t find someone, then the tenants are on the hook for all of the rent until the tenancy is over by its own terms. That could potentially be quite a bit of money.”

If the landlord is able to find a replacement tenant, will there still be fees for breaking the lease?

According to Pickard, if your lease agreement is written, there is an Oregon law that might still allow your landlord to charge you a fee for breaking lease, even if a replacement tenant is located.

“What tenants need to keep in mind is that if you have a written rental agreement, your landlord may have put in a second option for themselves if they're facing tenants who are not going to be staying for the entire duration of the tenancy,” says Pickard. “Now, this only works if there's a written agreement and if this is specified in the agreement, but there is a law in Oregon that allows a landlord, instead of just charging all of the remaining rent, to charge the tenant a flat fee of any amount up to a month and a half of rent. This is basically a one-time penalty for failing to stay the entire duration of their lease.”

Does a divorce decree allow flexibility for breaking a rental agreement?

Despite having a divorce decree that may lay out the groundwork and certain expectations for aspects of your lives as a divorced couple, it does not overrule a rental agreement, nor does it provide leeway to break a lease without consequence.

“A divorced couple may certainly have a divorce decree that impacts the rights as between the two spouses, but the divorce decree isn't going to be able to go in and interfere with the agreement that already exists between the landlord and the tenants,” says Pickard. “So the divorce decree could say, 'Husband is going to stay [at the rental property] and is going to keep paying the rent there,’ and like I said before, as long as the rent keeps getting paid, the landlord probably isn't going to care. But if the husband for some reason stopped paying rent, then the landlord would have a claim against both husband and wife for the unpaid rent, regardless of what the divorce decree says.”

So what’s the best option for breaking a lease due to divorce?

If you and your ex-spouse have decided that neither of you want to continue living in your rental property, and breaking the lease is inevitable, there are a few things you can do to help mitigate unnecessary complications.

“If you truly are in a situation where you're going to both be leaving the home, then the best thing for you to do would be to talk to the landlord about it as early as possible, and try to negotiate the most favorable deal for yourself that you can,” says Pickard. “Maybe it would involve you, as the tenants, doing something to try and find new tenants to replace you. And hopefully it wouldn't be too hard because it's not like you're leaving because there's a problem with the home. You're not leaving because the landlord is bad. You're leaving for reasons that don't have anything to do with this particular tenancy.”

If you’re a tenant in Oregon and navigating a divorce, don’t waste time getting in touch with your landlord. As stated before, most landlords won’t mind if one tenant leaves and another stays, so long as rent continues to be paid. However, if both you and your spouse are wanting to vacate the premise, contacting your landlord as soon as possible to explain the situation and discuss best options for moving forward is in your best interest. If you have any questions for our firm regarding your divorce, or for Troy regarding your rights as a tenant, do not hesitate to contact our office at (503) 227-0200.