Breach of the Lease

Topics on this page:

• Notice Required
• Procedure
• Payments Accepted After Notice but Before Eviction
• Appeals
• Mitigation of Damages
• Weather-Related Eviction Postponement
• Access to Counsel in Eviction (ACE) Program

Notice Required

If an unexpired lease for a stated period of time provides that tenant may be evicted for breach of the lease, the landlord may file a complaint in District Court if the tenant or person in possession has:

1. Violated (breached) the lease;
2. The landlord has given the tenant 30 days’ written notice that tenant has violated the lease, and the landlord wishes to repossess the premises; and
3. The tenant refuses to comply.

Only 14 days' written notice from the landlord to the tenant, or person in possession, is required if:

1. The breach of the lease involves behavior by a tenant or a person who is on the property with the tenant's consent; and
2. The behavior demonstrates a clear and imminent danger of the tenant or person doing serious harm to themselves, other tenants, the landlord, the landlord's property or representatives, or any other person on the property. Read the Law: Md. Code, Real Property § 8-402.1(a)(1)(i)

Procedure

The court will immediately notify the tenant or other person in possession, in writing, by sending a court form called a "summons." The summons will notify the tenant, or other person in possession, to appear in court on the date stated in the summons to explain or justify ("show cause") why the premises should not be restored to the landlord.

If the tenant, or other person in possession, cannot be found, the court considers service of the summons to be sufficient if the sheriff or constable posts a copy of the summons in a conspicuous place on the property and sends a copy of the notice by first class mail to the tenant. Read the Law: Md. Code, Real Property, §§ 8-402.1(a)(1)(ii) and (2)

If either party is absent from the hearing in the day listed on the summons, the court may continue (postpone) the case for 6 to 10 days and notify the parties of the postponement. Read the Law: Md. Code, Real Property § 8-402.1(a)(3)

If the court determines that tenant breached the lease and that the breach was substantial and warrants eviction, the court will order the sheriff or constable to give possession of the premises to the landlord and order a judgment for costs against the tenant or person in possession. A judgment for costs means that the tenant must pay the landlord for costs incurred by the landlord in bringing the lawsuit. This can include court costs, court awarded damages, and legal fees. The court’s order will determine the specific amount that is owed to the landlord from the tenant. 

When a sheriff executes a warrant to evict, the sheriff is required to immediately inspect the premises for any pets and, if found, deliver the pet(s) to the tenant. If the tenant is not present at the time the warrant of restitution is executed, the sheriff must: 

• contact an animal shelter or animal rescue organization to take custody of the pet; 
• provide the tenant with the name and contact information of the animal shelter or animal rescue organization where the pet is taken; and 
• provide the animal shelter or animal rescue organization with the name and contact information of the tenant to whom the pet belongs 

Maryland law prohibits removing a pet during an eviction and leaving the pet on public property or a public sidewalk.

Read the Law: Md. Code, Real Property § 8-402.1(b)(1); 14-806

Payments Accepted After Notice but Before Eviction

If a landlord accepts a payment from a tenant after giving the tenant notice of the breach of lease but before evicting the tenant, it is not considered a waiver of the breach of lease notice or any judgment for possession unless the parties specifically agree in writing.

Any payment accepted must first be applied to the rent (or the equivalent of rent relative to the date that the landlord actually recovers possession of the premises), then to court costs (including court-awarded damages and legal fees), and then to any loss of rent caused by the breach of lease.

Any payment that is accepted in excess of the rent referred to above cannot bear interest but must be returned to the tenant in the same manner as security deposits. Read the Law: Md. Code, Real Property § 8-402.1(c)

Appeals

Either party may appeal within 10 days of the judgment. If the landlord won, and the tenant appeals and wishes to stay on the premises until the determination on appeal, the tenant must:

1. File an affidavit with the District Court that the appeal is not for the purpose of delaying the eviction;
2. File sufficient bond with one or more securities, with the condition that the tenant will diligently prosecute the appeal;
3. Pay all outstanding rent and all court costs in the case; and
4. Pay all losses or damages that landlord may suffer as a result of tenant remaining in possession.

The appeals court will set a hearing between 5 and 15 days after the application is made.  Notice must be served on the other party or his attorney at least 5 days before the hearing. Read the Law: Md. Code, Real Property § 8-402.1

If the judgment of the District Court is in favor of the landlord, the sheriff will execute a warrant. Read the Law: Md. Code, Real Property § 8-402.1(b)(2)

Learn more about appeals.

Mitigation of Damages

In the following situations, even if breach of a lease has occurred, the person who has been harmed has a duty to mitigate (lessen) the damage landlord or tenant suffers:

1. When the landlord fails to give possession of the leased premises to tenant, or tenant fails to yield possession to the landlord;
2. When the tenant fails or refuses to take possession at the beginning of the term; or
3. When the landlord or tenant terminates occupancy before the end of the term.

In these cases, the breaching party is still liable for damages. “Mitigation of damages” means that the person who has been harmed has to make reasonable efforts to keep from being harmed even more. When a landlord is mitigating damages, the law does not require the landlord to show or lease a prematurely vacated dwelling unit in preference to other available units.

Whenever the tenant has wrongfully refused to take possession or has vacated a dwelling unit before the end of the term, the landlord may sublet the unit without prior notice to the tenant.  In that case, the tenant is liable for (i.e., responsible for) any damages the landlord suffers as a result of the breach.  In addition, the tenant is secondarily liable for rent (i.e., must pay the unpaid rent) for the remainder of the lease term if:

1. The subtenant/sublessee defaults; and
2. The landlord gives original tenant prompt notice of the default.

The provisions of this law cannot be waived in any lease. Read the Law: Md. Code, Real Property § 8-207

Weather-Related Eviction Postponement

In the event of “extreme weather conditions,” the administrative judge of the District Court may order that the scheduled evictions for nonpayment of rent for a residential property be postponed from day to day.  When weather conditions permit resumption of evictions, the postponed eviction will be given priority and must be completed within 3 days after the extreme weather conditions end. Read the Law: Md. Code, Real Property § 8-401(f)(2)

Access to Counsel in Eviction (ACE) Program

If you are at risk of eviction or losing your housing voucher or subsidy, you may be eligible for a free lawyer. Lawyers with the ACE Program can represent you in these kinds of cases:

• Failure to pay rent
• Breach of lease
• Tenant holding over
• Voucher or other subsidy terminations

To be eligible, you must be a tenant living in Maryland and have a household income at or below 50% of Maryland’s median income.

Call 211 and follow the prompts to evictions legal help or apply online.

Learn more on the Civil Justice website.