What is a Lease?
An apartment or housing lease is a contract creating certain legally enforceable rights and obligations between the landlord and the tenant. In its most fundamental form, it gives the landlord the right to receive rent in exchange for her obligation to provide the tenant with possession, and it gives the tenant the right to possess the premises in exchange for his obligation to pay the landlord rent.
Besides the rights and obligations created by the contract, a lease gives the tenant a temporary, qualified interest in the premises called a "tenancy".
Written or Oral
An oral lease is just as binding as a written lease if the duration of the lease does not exceed one year. Under a law known as the Statute of Frauds, every lease for more than one year must be in writing or it is void. An oral month-to-month lease would be valid, as well as an oral nine month lease. An oral lease for one year and one day, however, would be invalid.
While there is nothing wrong with an oral lease for a year or less, the best way to avoid disputes is to get the entire lease agreement in writing.
Kinds of Tenancies Created by a Lease (Written or Oral)
A "tenancy" is the possession or occupancy of the lease premises under right of title. As a tenant you are the one who has the temporary use and occupancy or real property owned by another person, the landlord, with the duration and terms of your tenancy usually being fixed by an instrument called a lease. When the tenant is put in possession by the landlord, she is similar to an owner of the leased land for the time being and has all the rights and remedies to defend her tenancy.
Tenancy for Years This type of tenancy is created when you lease an apartment or other dwelling for a fixed duration. Examples are a lease for one year beginning January 1 and ending on December 31; a lease for nine months; and a lease for one month. It is not a tenancy for a certain number of years but applies to any tenancy that has a certainty of time.
Periodic Tenancy This is a tenancy by which the lease continues for successive periods unless terminated at the end of a period by advance notice. This type of tenancy is created when the apartment is leased from year to year, month to month, or week to week. It is a continuing tenancy that does not end at a predetermined date.
Tenancy at Sufferance This occurs when the lease has expired, but the tenant continues to occupy the premises. So long as the landlord permits this holdover occupancy, this tenancy distinguishes the tenant from a mere trespasser.
Essential Terms of a Lease (If it is Written)
- Description of the Property An accurate description of the property (including, for instance, the apartment number) covered by the lease is essential.
- Description of the Parties It is important that everyone having an interest in the lease property be identified and that names be spelled correctly.
- Designation of the Term It is necessary that the lease describes with reasonable certainty the date of commencement and duration of the term of the tenancy.
- Designation of Rent - The lease should clearly state the amount of rent to be paid by the tenant and the date that each rent payment is due.
- Signature of the Landlord It is necessary for the lease to be signed by the landlord to make it valid. If the lease is only signed by the landlord, it is still binding upon her when accepted by the tenant.
- Delivery The landlord must deliver the lease to the tenant. However, the law will presume the tenant's acceptance on the principle that a person is presumed to accept that which is to his benefit.
Signing a Lease If You are Minor (Under Eighteen)
A minor can reject a lease during his minority (under eighteen) if he gives thirty (30) days or more notice to his landlord, expressly rejects the lease and relinquishes possession of the apartment. By doing this, the minor tenant will be relieved of paying future rent. A tenant can also reject a lease made during his minority if he does so within a reasonable time after turning eighteen and not be held liable for rent thereafter. However, if upon turning eighteen, the tenant does not reject the lease in a reasonable time, the law will presume his ratification of the lease and he will be bound. It should be stressed that as a minor tenant you are still liable for the rent during the actual time you lived in the apartment. The landlord can raise the defense of "necessaries" to your rejection of the lease because of minority and if it is proved the apartment is a necessity to your well being, you may still be bound by the lease. "Necessaries" are items reasonably needed for the minor's subsistence such as food and lodging. This section is not intended to give tenants under eighteen a legal loophole for avoiding payment of rent, but only to advise them of their rights as minors. Any questions regarding breaking a lease should be discussed with the Students' Attorney.
Signing a Lease with Your Roommates
The law presumes that when two or more persons undertake an obligation, such as payment of rent, they undertake it jointly. Being considered joint tenants, you become responsible for any liability for the rent, including your roommate's share as well as your own. As joint tenants the landlord treats you and your roommate as a single unit, not individually. Even if your roommate dies, you are responsible for her share of the rent. The best solution to this problem is to request a separate lease covering the amount of your rent only. Under a separate lease your liability covers only what you promise the landlord and you are not liable for your roommate's actions or her failure to pay rent.
Writing and Printing in the Lease
Some landlords buy printed lease forms and add additional clauses to this form either by writing or typing. Whenever there is an inconsistency between what is printed and written, the written prevails over the printed forms because the writing better shows the true intentions of the parties.
Erased or Stricken Parts of a Lease
Words that are eliminated from a lease before it is signed and delivered are not to be replaced or referred to in interpreting the lease. A lease is to be interpreted with reference to the words that it contains. Words that have been erased or crossed out are not to be considered except in determining the intention of the parties where the lease is ambiguous.
Ambiguities in the Lease
In case of doubts as to the meaning of a lease term, the tenant is to be favored rather than the landlord. When a lease is prepared by the landlord, ambiguous provisions are interpreted against him and not the tenant.
The lease contract can be modified by the mutual consent of both the landlord and the tenant. The altered parts of the lease should be initialed by both the landlord and the tenant to avoid future conflicts.
Clauses in the Lease
Read the lease carefully to make sure that all oral understandings between you and the landlord are identical to written ones in the lease. It is recommended that you do not sign the lease the same day that you receive it; but rather take it home with you overnight and then after a careful reading sign it the next day. Pay close attention to the following clauses: Damage and security deposits, duration of the lease, penalties for late rent, subletting, duty to repair, and alterations and improvement you are allowed to make.
Clauses Not to Accept in a Lease
- The tenant waives her legal rights in regard to any defect in the building.
- The landlord has the option to terminate the lease at any time if in his sole discretion he determines that the conduct of the tenant is detrimental to the safety of the other tenants or to the apartment or the building.
- Forced withdrawal from the University will be just cause for forfeiture of the deposit.
- The landlord shall not be liable for any injury to persons within the rental unit or the building including the tenant, his family or guests.
- The tenant is liable for all repairs to the premises.
- The landlord may enter the premises at any time without notice.
- Unless written notice is given 30 days prior to termination, the lease shall extend for a like period of the original lease.
- The tenant is liable for attorney's fees in all litigation arising from the lease including the landlord's defense. A clause making the tenant liable for attorney's fees should at least be limited to the landlord's attorney's fees upon the landlord winning his action in court. If the lease contains such a clause you should request the same right from the landlord if it becomes necessary for you to enforce any of your legal rights.
- The tenant agrees to abide by any rules or regulations made subsequent to the time the lease agreement is signed.
- "Confession of judgment" allowing the tenant to be sued for breaking the lease without personal service of process.
- Acceleration clauses that call all amounts due and payable under the lease upon the failure to pay any one payment of rent.
Clauses to Include in the Lease
- No deduction from the deposit for normal use and ordinary wear and tear of the rental unit.
- A specific description of when any deposit or deposits posted with the landlord shall be returned and under what conditions (by statute a damage or security deposit must be refunded to the tenant within 30 days after termination of the lease or within 15 day after receipt of the tenant's new mailing address whichever is later, but these time periods may be modified by a provision in the lease).
- Notice of whether any portion of a deposit is non-refundable and the reason why.
- The landlord shall maintain the premises in a safe and sanitary condition fit for human habitation.
- The landlord shall maintain the common areas of the premises in a sanitary and safe condition.
- The landlord shall maintain the electrical, heating, and plumbing systems and provide hot and cold water.
- The landlord shall maintain appliances and other facilities as agreed upon in the lease.
- The landlord shall comply with all applicable provisions of any state statute or local ordinance governing the maintenance, use, construction, or appearance of the rental unit.
- The landlord shall provide and maintain appropriate receptacles for the removal of garbage and trash and arrange for its removal.
- The landlord shall use due diligence to mitigate damages if the lease is broken. This means the landlord will try to find another tenant as soon as possible in order to reduce whatever damages he is suffering (loss of rent).
- Any lead paint disclosures as required by current federal law.