Standard Texas Lease: Is an agreed early termination a default?

[Gunnar F.]

Hoping someone out there has had lots of experience with clauses 27 (Default) & 28 (Early Termination) of the standard Texas Association of Realtors lease as it read in 2013... 

My tenant wished to exit the lease early with approximately 5 months left on the lease. I agreed to allow this so long as I could find a replacement tenant. Otherwise, the tenant agreed to stay for the remainder of the term.

I contracted with an agent to find a new tenant, which happened in time for a move-out with three months left in the rent.

My position would be that the tenant is responsible for re-letting fees (agent commission). But the tenant argues this was not actually a "default" since I agreed to allow the tenant to exit the lease.

The tenant thus argues that he was not "abandoning" the lease and that he would only be liable for re-letting fees were this an actual default under Section 27. By contrast, the tenant argues that this was a far more innocent agreed early termination under Section 28, which makes no mention of the tenant's potential liabilty for re-letting fees.

I countered that I am not waiving my rights to re-letting fees and that this remains a default situation. Indeed, I am just facilitating the tenant's early departure while trying to mitigate their liability as a consequence of the default. My agreement to switch tenants does not transform my current tenant's early exit of the lease into a non-default. Nor does the conditional nature of the tenant's departure and the tenant's willingness to stay for the duration of the lease had I not been able to find a replacement tenant render his early exit a non-default.

In brief, switching tenants was not a mutually beneficial activity. And had the situation not been so urgent I would not have incurred agent commission fees (I would have just advertised online like I usually do).

Needless to say, the smart thing would have been to chart all of this out in an ancillary agreement. But I am curious as to any views under these circumstances for future cases. Thanks!