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Seven Lease Provisions to Watch Out For

Posted on June 16, 2014 11:59 am

When you’re looking for a new apartment, it seems like finding a place where you’d love to live is the hardest part. (We can help!) But finding the new place is only half the battle. You still need to apply for it, and once your application is accepted you need to negotiate and sign a lease.

You can't get one of these until you've signed your lease.

You can’t get one of these until you’ve signed your lease.

Photo: Joe Mazzola/CC BY-SA 2.0

The lease is a legal contract that gives you the exclusive right to inhabit the space identified in the contract for a specified period of time. It’s extremely important that you read and understand it. If the landlord refuses to offer a written lease, or if she pressures you to sign it without reading it, that’s a major red flag.

As you read the lease, make sure to check key terms. Is the address listed for the apartment in the lease the right address? Is the rent correct? Does the lease tell you how and when to pay your rent? If there is a rent concession (like a free month of rent), is that reflected in the lease? Who pays for utilities, and which ones? You need to confirm all of those points, and ask any questions you may have, before you sign anything.

In addition, there are certain provisions that you should take issue with if they appear in the lease. We’ve got a list below – if you see these provisions in your lease, make sure you ask some questions! Note that laws differ across the 50 states; this list is intended to point out relatively common issues and help you start addressing them.

Before we get started, a couple of notes:

Beware if the landlord offers things to you verbally but won’t put them in writing. You’ll have a hard time enforcing them later. Similarly, if the landlord tells you she won’t enforce a provision in the lease, either get that in writing or ask that the provision be removed from the lease.

If you have a dispute with your landlord, educate yourself, and then ask for help. In almost every city you will find both online resources and one or more tenant’s rights organizations. Use those resources. For New York, you can find resources here, here and here. For Boston, try here, here and here. In Chicago, start with this, this and this. Otherwise, start with a google search, and remember that if you’re in federally-subsidized housing there may be federal resources available too.

If at all possible you want to resolve disputes amicably, and the tenants’ rights organization may be able to help. If you can’t, or if you don’t know what to do next, don’t waste time (or engage in self-help by withholding rent) – reach out.  

Tenant takes the apartment “as-is”. In 49 of the 50 states every landlord is required, whether the lease says so or not, to make sure that the apartment and all common spaces related to the apartment are (1) fit for human habitation and (2) not subject to conditions which would be dangerous, hazardous or detrimental to the tenant’s life, health or safety. This is the implied warranty of habitability, and renters can’t waive it except in very limited circumstances. (In the 50th state, Arkansas, it’s also a crime to not pay your rent when due. Be careful!)

What does this mean? If the apartment isn’t currently habitable, or is unsafe, your landlord is required – at his expense – to fix it up, no matter what the lease says. A landlord trying to get you to take an unsafe apartment may be trying to make you pay to fix his problem. Don’t do it. And don’t ask too many questions about whether an apartment is habitable or unsafe. If it looks or feels reasonably unsafe, stand your ground.

If the apartment is habitable and safe, the landlord isn’t obligated to do anything else. You may want to negotiate for move-in repairs or modifications, but a statement that you accept the apartment is irrelevant (your signing the lease evidences your acceptance).

Tenant is responsible for repairs. The landlord must ensure that the apartment is safe and habitable, and you can’t be made to pay for those repairs. Otherwise, if the landlord agrees to provide certain things in the lease (e.g., a dishwasher), then as a matter of contract law the landlord is responsible for ensuring that they work. You might agree to do certain repairs in return for compensation, but it’s the landlord’s job to provide the apartment she agreed to provide.

Landlord may enter at any time for any reason. Landlords can enter with no notice in case of emergency (which is probably a good thing!). Otherwise, by law in nearly all jurisdictions your landlord can’t enter your apartment without prior notice. How much notice may be specified in the law – it’s often 24 hours’ notice – or it may be “reasonable notice”. Your lease may describe specific things that constitute emergencies, e.g., bedbug infestation, and may also describe circumstances when the landlord can enter the apartment with notice. Be clear on what these situations are.

Tenant will pay X in maintenance/guest/cleaning fees. Often fees are permissible, so this is more about making sure you know what you’re getting into. If you’re going to be charged a monthly cleaning fee, for example, make sure you know what’s being cleaned, by whom, how often, and whether the cleaners will be able to access your apartment without you there. Also note that certain types of fees (unreasonably high late fees, or guest fees) may not be legal in some states.

Anything where you waive a right. It’s difficult in almost all states to waive rights to which you’re entitled by law, even if the lease says you’re doing so. That said, whenever you’re waiving anything make sure you understand what you’re waiving and why you’re being asked to waive it. This may alert you to an issue of which you weren’t aware, and though the landlord may not agree to change the lease you’re now forewarned.

Landlord will not be held liable for any damages. Again, the landlord can’t get out of his legal responsibilities. If the landlord acts negligently in failing to keep the apartment or building safe, the landlord should be liable if you get hurt or your property is damaged as a result. Beyond that, ask what damages the landlord is concerned about and why. You’ll get clues as to what’s important to the landlord.

Landlord has the right to change lease provisions at any time. Maybe this doesn’t matter – do you really need notice and an opportunity to be heard if the pool hours are changing? – but if the landlord can change key terms of the lease without your consent (or at least telling you) you’re at real risk. The landlord’s verbal assurances that they won’t use this power aren’t good enough here – make sure the lease includes restrictions on the landlord’s ability to unilaterally change material terms of the lease.

NOTE: This post is not intended to constitute, and does not constitute, legal advice and may not be used as such.

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