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."
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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."
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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.
4. Tenant will pay $ __ maintenance/guest/cleaning fees
Many fees are legal, so you have to watch what you sign.
Here's a common example: The lease states that the tenant will pay a $50 maintenance fee for lawn mowing. Then someone shows up to mow every two weeks. You've just added $100 a month to your rent.
Hardell Ward, a lawyer with Southeast Louisiana Legal Services, had a case where the landlady charged $25 a month to change the filter in the air conditioner. The landlady kept changing the filter even when the tenant wasn't using the unit.
"The judge said, 'It's in the lease; you owe the money,'" Ward says.
"Any clause that has to do with any fee for maintenance, you want to see how much it is and how often they say they're going to charge this," Ward says.
Also, beware of clauses that require fees for having guests, which may be illegal; for unreasonably high late-rent fees, also illegal; for repair fees; and for vague administrative fees. (For more on fees, see "8 questionable rental fees to avoid.")
5. Tenant waives his right to _____
Grab a yellow marker and start highlighting any words such as "waive" or "waiver." Contact a tenants union if need be, and make sure you understand exactly what the clauses mean.
Some leases may ask you to waive your rights under the state's security-deposit law, or to waive your right to receive legal notice for eviction proceedings, or to waive your right to fight an issue in court.
These clauses may be illegal anyway. It's difficult — usually impossible — for a tenant to waive rights guaranteed by law. But be sure. There may be a rare exception, such as Louisiana, which favors contracts.
"In Louisiana, it's the old French custom, laissez faire, let contracts stand," Ward says. "As long as you're not violating some kind of housing discrimination laws — or if it's a criminal provision — you can basically write any clause you want in your lease and have it enforced."
6. Lease will automatically renew
Sign an automatic renewal clause and here's what happens: A month or two after your one-year term expires, you're automatically on the hook for another year, even though you never renegotiated.
Tenants forget they'd signed this. Then they try to move and — oops.
"As a tenant, you probably want to avoid those," McClure says. "If it's not in the lease for auto renewal, the law presumes you're on month-to-month."
7. Landlord will not be held liable for any damages
Logic holds that if the landlord has failed to maintain the rotting front porch, and a visitor falls through, that it's his fault, right? Well the law follows that logic, too. In other words, even if you sign this clause, it's unlikely a court will enforce it.
"If landlords were allowed to waive their own obligations, they could, in a sense, let buildings fall down on people and they'd never be liable," Kellman says. "Virtually all jurisdictions would hold the landlord to a standard of care against being negligent, regardless of what the contract says."
But, again, confirm that's the case in your own jurisdiction, or strike the clause.
8. Landlord (or management) may change the terms or rules at any time
Wait, so you agree to pay X amount for 12 months, but the landlord gets to change the rules whenever he wants?
Nope. Take a big wide turn around this one, experts say. Essentially, the landlord is asking you to agree to rules that you haven't even seen, to sign on to the unknown. That's OK for minor issues, such as pool hours, but not for major issues such as parking fees.
"I don't like anything that makes reference to something that's not in the written document," McClure says.
9. Rent is due in advance of the first of the month
No, there's nothing wrong with this clause. Just be aware of it. Write a big fat "Rent due on the 30th" in your own records.
Because rent is associated with the first of the month, even tenants who have read their lease can easily forget that their rent is due before the first, tenant advocates say. When tenants dutifully submit payment on the 1st, they may be charged a late fee.
10. Any vague language
Does the lease say you're responsible for yard care or other maintenance? That's fine, but how often? To what standard? What did it cost the previous tenant?
Get every detail, in writing, Kellman says. "Otherwise it could end up costing you a lot of money."
If it says "be quiet," are there quiet hours? If it says landlord can store belongings in the garage, decide how many shelves he gets, how frequently he can come by and how much advance notice he must provide.
"Clarify things that are subject to varied interpretation is good broad advice," Kellman says.
