Renters: Beware of these lease clauses
When the landlord hands a new tenant a lease, it's only the beginning of a negotiation. Tenants need to know which clauses to strike – and which are illegal – before signing, or things could get costly later.
As if the search for an apartment isn't bad enough, then comes the lease. Pages of legalese, slid in front of you by a waiting landlord who still holds the keys.
It's intimidating, to say the least. The urge is clear: just smile and sign. After all, you're a good tenant; what could go wrong? And good relationships begin with trust. You reach for the pen.
OK. Stop there. Rewind. The paper you are about to sign is a legal document. The conditions it outlines are binding for the term of the lease, usually one year. That means a court can hold you to every clause therein, as long as that clause is legal.
"It's very important to review," says Janet Portman, a landlord-tenant lawyer and author of "Every Tenant's Legal Guide." "Even if the lease misstates the law — and it will normally misstate it to your disadvantage — getting your rights enforced can be long, tedious and expensive."
Portman reviews leases for online sites that sell legal forms, often to landlords who think they're getting a bona fide "standard lease." But there's no such thing as a standard lease, and the forms often contain "huge problems," Portman says. In each, she typically spots "three to 10 problem areas."
"I haven't found any that you can download that are state-compliant," Portman says. "Many are written by landlord lawyers. Most of them are bad."
Unfortunately, that leaves it up to you, the tenant, to read carefully before signing. You might not want to whip out the magnifying glass in front of the landlord; if it's a desirable unit in a tight market he may opt for someone "less difficult." (See "Should I fight my lease? 4 questions to ask.") But you'll want to take a copy to review overnight. At the least, you need to know which clauses to avoid like a moldy tub, and which may not even be legal. If the landlord won't discuss it, run.
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"When you're reading through the lease, it's not only what the lease says but who you're dealing with," says Steven R. Kellman, director of the Tenants Legal Center of San Diego. "You've got to look out for the red flags." Be on alert if the landlord:
- Doesn't give you a copy of the lease.
- Rushes you to sign it on the spot.
- Says about a clause, "Oh, it's just a formality; we don't enforce that." If that's the case, ask the landlord to remove it.
- Makes an oral agreement but is reluctant to add it to the contract.
- Brushes off your concerns by saying, "It's just a standard agreement." As Kellman says, "'Standard contract' is a made-up phrase."
When you do review the document, make note of any clauses that seem troubling or confusing and seek help from a tenants association. The list below is not meant to be inclusive. Consider it an introduction to 10 common lease clauses that a tenant should strongly consider striking.
1. Tenant agrees to take the rental as is
This would be fine if it just meant the landlord isn't going to paint the walls a new color. But too often tenants believe — and landlords behave as if — the clause also applies to serious issues: inadequate heat, mold, vermin, broken floorboards, etc. These are health and safety matters.
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In every state except Arkansas, tenants have what's called an implied warranty of habitability, meaning the landlord must provide fit and habitable housing. He cannot write his way out of that obligation, no matter how indelible the ink is.
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"You still see clauses like this in leases," Portman says. "Tenants don't know better and, frankly, landlords don't know better."
If the landlord wants to spell out that he's not going to make cosmetic upgrades, fine. But it's unnecessary; he's not legally required to make them. It would be like writing in the lease, "Landlord will not cook tenant Sunday dinners."
So strike the clause altogether. Or, if you've signed, know that you can ignore it. It's critical that tenants know that landlords don't ever get a free pass when it comes to safety and health repairs.
Suggest that the landlord get a landlord-tenant neutral — and state-law compliant — lease form at Nolo.com.
2. Tenant is responsible for repairs
Sure, if the tenant rips the blinds or his dog shreds the carpet, he needs to fix it. Tenants are responsible for issues caused by their own negligence. But if the old heater cranks to a halt or the windows stop sliding closed in warped frames, it's the landlord's responsibility to make repairs, to keep his building in safe, working order.
"Tenants may see that (clause) and think, 'If I signed this lease I've given up the right to insist that the landlord repair it,'" Portman says. "What they don't realize is that even though they signed it, a judge would not enforce it. It's not legal."
Why? See No. 1, above. In 49 states, the landlord must maintain a fit and habitable dwelling. In Arkansas, the only state without an implied warranty of habitability, "If a tenant sees that in a lease they should run screaming from that situation," says Ed McClure, a landlord-tenant lawyer there.
Another force is at work here, too: contract law. A dishwasher and microwave may not be essential for habitability. But if the tenant signed on — and so is paying — for a unit with these appliances, then the landlord needs to keep up his side of the bargain. Translation: He needs to keep them running.
Only in select circumstances can a landlord require a tenant to do repairs, and it's in exchange for compensation. An example would be a building manager who receives free rent. Or, in some states, tenants may agree to do repairs on single-family homes.
You can get a judge to explain all this to a landlord later, or you can save the expense of court by striking this noxious, and illegal, clause at the outset.
3. Landlord may enter at any time — or for any reason
Yes, a landlord wants access. That's understandable. But tenants have a right to privacy, and that right is protected by law.
"The majority of states have very strict rules," Portman says. Those rules outline the reason a landlord may enter (agreed-upon or needed services or repairs; to show the unit for re-rental); how much notice he must give (usually at least 24 hours); how he provides notice (in writing, for example); and even consequences should he fail to follow the rules (could be deemed harassment or illegal entry).
The only time a landlord may enter "at any time" is in an emergency. And emergency means emergency, as in smoke, flood or sirens.
Once again, the law is the law no matter what you've signed on a nice paper with legal borders. But it's best to make sure both sides are clear from the outset. Become familiar with the law in your state and rewrite this paragraph to reflect the tenant's rights, specifying how and when the landlord must notify you before entering.
Even in an extremely landlord-friendly state such as Arkansas, an "enter any time" clause "is definitely something you would want to take issue with," McClure says.
ok. The lease that my realtor provided, and my tenant signed, says "tenant would like an option to lease for a second year at the same conditions". The lease agreement says "tenant would like", not "owner will or shall..".
I'd like to raise the rent in the 2nd year. Does the lease allow me to do that?
kind of abusive terms for sure.
If people are getting stuck with those terms, the article title should read.....Read your Lease agreement you knuckleheads :)
I have a fairly long lease ( I had one tenant joke that I was writing my Real Estate Thesis). It really was something I got out of a Landlording book that I've adapted over the years. I always send the lease to them before signing day, and tell them that we'll go over it when they come to sign. On signing day, I go over it line by line to make sure we're in agreement. I always tell them that I have no problem altering the lease if they find something o****ectionable (my best example is a tenant who plays trumpet and wanted to change the "unreasonable noise" clause...no problems, by the way. I actually live next door and kind of enjoy it in the summer when the windows are open.)
I really don't want me or the tenant to have any surprises that could have been easily anticipated, so I find it's best to just sit down and talk about it. I think when people run into problems (on either side) is when they were expecting one thing, and the other side wasn't. One time, I used a lease and forgot to put language in it that the tenant was responsible for maintaining the lawn. So, my bad, I had to cut the grass.
For tenants: it should also be a big red flag for you if the landlord doesn't want to take the time to sit down and discuss the lease, or address your concerns. It's the beginning of a relationship, and people should be putting on their best faces. If you're not comfortable enough with them to ask them about the lease, imagine how you'll feel calling them in the middle of the night a few months later because something has sprung a leak.