Residential Lease or Rental Agreement for Month to Month
Note: This summary is not intended to be a detailed,
all-inclusive discussion, but rather an overview of typical provisions
of general residential landlord-tenant law, as set forth in the Uniform
Landlord Tenant Law. Versions of the Act have been adopted in the following
states: Alaska, Arizona, Florida, Hawaii, Iowa, Kansas, Kentucky, Montana,
Nebraska, New Mexico, Oregon, Rhode Island, South Carolina,
Tennessee or Virginia. Other states have similar Landlord Tenant laws.
For State specific information see the South
Dakota Landlord Tenant Law.
What leases are not covered by this summary?
This summary only covers residential housing and apartment leases.
It does not cover condominiums, residence at a public or private institution,
or occupancy under a rental agreement covering premises used by the occupant
primarily for agricultural purposes.
Certain Provisions of Residential Leases not allowed?
Some lease provisions are prohibited or will not be enforced by
the Court. Unconscionable provisions may be held unenforceable in court.
Unconscionable provisions include (but are not limited to) those in which
a tenant agrees to waive rights granted to tenants under applicable law,
agrees to pay landlord's attorney fees beyond what is allowed by law, or
agrees to the limit the liability of or hold harmless the landlord for
landlord's legal liabilities related to the lease. If a landlord intentionally
inserts lease provisions known to him to be unenforceable, the landlord may
be liable for increased damages.
Obligations of good faith?
Landlords and tenants are obligated to act in good faith (that is,
with sincerity, and without ulterior motives) when performing acts under
the lease agreement.
Limitation of use to residential use?
Leases typically limit the use of the premises to residential use,
and forbid use as a business. Exceptions for limited business use are allowed
in some states.
Disclosure of landlord and property manager.
Most states require that tenant be informed of the names and addresses
of the landlord and (if different) the property manager of the premises.
This information should be provided to tenant prior to or as as part of
the lease.
Security Deposits.
Security deposits may be demanded by the landlord at the time of the
lease to ensure partial or total coverage of expenses if the tenant leaves
behind damage, unpaid rent, or leaves the premises in an unclean condition
after the termination or expiration of the lease. Typically the amount
of the security deposit is capped by statute at a maximum amount such as
one or two month's rent. Procedures concerning security deposits vary widely
from state to state, with a sizable minority of states requiring placement
in a separate, interest bearing bank account with interest being periodically
paid out to tenants. A tenant and landlord are typically required to inspect
and document the condition of the premises prior to the lease, and to
revisit and redocument the conditions after the lease, regardless of whether
the lease was terminated due to breach or simply expired. A Landlord may
retain a portion of the security deposit sufficient to repair damages (other
than reasonable wear and tear), clean and account for unpaid rent. The
remainder must be mailed to the tenant with documentation of the deductions.
A Tenant must provide his forwarding address, and there is a limit on the
obligation of the landlord to retain the security deposit when unable to
reach the tenant by mail. Suit may be brought by the tenant for failure
of the landlord to fulfill the statutory obligations, but damages are normally
capped.
Typical duties of the landlord.
A Landlord is obligated to supply possession of the premises as
agreed in the lease. The premises must meet minimum standards of habitability
including compliance with applicable building codes. Weatherizing, locks,
running water, working plumbing, heating and cooling, pest control, and
other basics must be in place. A Landlord is obligated to keep the premises
in repair, to the same standard as existed when the tenant initially leased
the premises. Damages caused by the tenant, however, will be repaired only
at the tenant's expense.
Typical duties of the tenant.
Aside from complying with the lease agreement (many of which typically
incorporate statutory duties of tenants), the tenant is obliged to keep
the premises in as clean and safe condition as possible, and comply with
any applicable health and safety codes, including proper disposal of garbage.
The facilities and appliances in the premises must be used in a reasonable
manner. A Tenant must not damage the premises, nor cause a nuisance to
neighboring tenants. A Tenant must not permit or participate in criminal
activity on the premises. A Tenant is required to inform the landlord of any
dangerous conditions that develop, of any damage caused to the premises
by whatever source, and of any serious injury to the tenant, the tenant's family
or guests, or the tenant's property while on the premises.
Rules and Regulations promulgated by Landlord.
A landlord may adopt rules and regulations concerning the tenant's
use and occupancy of the premises in order to promote safety and welfare,
preserve property, and fairly distribute services and facilities. If the
rules are reasonable and specific, they will be enforceable if the tenant
has notice of the rules, either at the time the tenant enters into the
lease agreement, or at the time the rule is adopted. If adopted after the
tenant has entered the agreement, the tenant must consent to it in writing
if the rule substantially modifies the lease agreement.
Typical tenant remedies for breach by landlord.
If the landlord breaches his obligations to maintain the premises, the tenant
normally has several options. First, the tenant must usually give the landlord
a written notice with a deadline in which to repair the problem, the deadline
being prescribed by law and varying from shorter to longer depending on
the severity and impact of the problem. If the landlord fails to act, the tenant
may either terminate the lease, have the damages repaired by outside contractors
or by the tenant himself and deduct the cost of repairs from the next month's
rent, or withhold rent until the landlord repairs the damage. If a landlord
fails to provide possession of the premises, the tenant may find other lodgings
and sue the landlord for the difference in monthly cost, providing the tenant
mitigates damages. If a landlord wrongfully evicts the tenant, the tenant's
option is normally to fight the eviction in court and sue the landlord for
damages.
Typical landlord remedies for tenant breach.
If a tenant breaches the lease agreement, the landlord must serve
written notice of the breach upon the tenant, describing specifically what
consitutes the breach, and in many cases, stating a deadline by which the
tenant must remedy the breach or be terminated. The period of notice prior
to the deadline is defined by statute and varies in length depending on
the severity and type of breach. If the breach is non-payment of rent,
a period from three days to two weeks is typically allowed for repayment.
If the breach is related to a condition which affects health or safety,
a suitably short period of time is allowed in which to remedy the defect.
If the breach involves property damage or other non-threatening conditions,
the period of notice is typically 30 days, and the landlord may exercise
the option to repair the damages himself if the tenant has done nothing within
two weeks (the tenant being charged with the price of repair). Criminal activities
are often in a separate category, and the landlord may terminate the lease
immediately, or on short notice.
How does the landlord terminate for non-payment
of rent?
A Landlord must typically serve a written notice on the tenant,
specifying the amount of rent owed and demanding payment in a period of
time usually from three to fourteen days (depending on state law), or face
termination of the lease. If the tenant pays before the deadline, then the
lease is not terminated. Some state statutes remove the protection of the
notice period if the tenant is late with payment more than a certain number
of times per year.
Rules regarding abandonment of premises.
Abandonment is typically defined as absence of the tenant from the
premises for a period of time when rent has not been paid. Provided the
statutory definition is met, a Landlord is allowed to reposses the premises
and store the tenant's belongings. A Tenant may recover same before the expiration
of a certain time period, but must reimburse the landlord for the cost of storage.
Rules regarding landlord access to the premises.
A Landlord has the right to enter the premises at reasonable times
to inspect, maintain, and show the premises. Except in the case of emergency,
a landlord must gain permission from the tenant in order to enter. The
Tenant may not unreasonably deny permission. Either party may obtain injunctive
relief from the courts if the other party is unreasonable regarding access
issues.
Damages from fire or disaster.
If the premise is rendered uninhabitable, a tenant may move out and
give written notice to the landlord of termination of the lease. If only
part of the premise is uninhabitable, a tenant may deduct a proportional
amount from rent. Either the landlord or tenant may recover damages if
the other caused the damages.
What is "mitigation of damages"?
If a tenant's or landlord's property is being damaged by the action
or inaction of the other, the injured party is generally not allowed by
law to let the damages continue to mount if there is something they could
do to stop the damage from occuring or lessen the severity thereof. Courts
will not allow a claimant to recover for damages which he was reasonably
capable of preventing, no matter if the source of the damage was the action
or inaction of another. This principle of mitigation of damages is especially
applicable to landlord-tenant law and must be adhered to by landlords and
tenants.
Sub-leases & Assignments.
It is allowable in a lease for the landlord to retain complete control
over whether a tenant is allowed to sub-lease the premises. In a minority
of states, the landlord may not unreasonably refuse permission. On the
other hand, the landlord is always free to assign his interest in the leased
property to another. A Tenant must be notified of the change and of the
new address at which to pay rent.
Self-help recovery of possession prohibited.
In a large majority of states, self-help recovery of possession
of premises (locking out tenant or forcibly removing tenant) has been abolished.
Landlords must follow the legal processes under state law to accomplish
eviction of tenants.
Definitions.
Tenancy at will: A rental agreement that may be terminated
"at the will" of either landlord or tenant.
Typically an unwritten agreement
may require a brief period of notice of termination.
Tenancy at sufferance: A tenant who has no right to occupy
the premises, but is tolorated by the landlord and may be terminated at
the will of the landlord.
Payment of rent by the tenant transforms the
tenancy into an "at will" tenancy.
Tenancy for year to year: A written lease with a term of
at least one year.
If there is no expiration date, the lease may require
a notice of termination of one to three months.
Tenancy from month to month: A written lease with a term
of less than one year.
Termination typically requires a one month notice.
Tenancy from week to week: A written or unwritten lease,
characterized by payment of rent on a weekly basis, which typically requires
a one week notice of termination if there is no designated expiration date.
"Normal wear and tear": Deterioration or depreciation in
value by ordinary and reasonable use but does not include items that are
missing from the dwelling unit.
"Premises": A dwelling unit, appurtenances thereto, grounds,
and facilities held out for the use of tenants generally and any other
area or facility whose use is promised to the tenant.
Lease Form Summary:
Each and every paragraph of the Lease is important. Below is a brief
explanation of each paragraph:
Preamble : Indicates the date the Lease is entered, and the names
of Landlord and Tenant. First notice to Tenant(s) of joint, several
and individual liability under the Lease- the more often and prominently
this is mentioned, the more likely it will be upheld by a court.
1. Grant of Lease: The formal "grant" of the Lease. This paragraph
identifies the location and address of the leased premises, and any additional
"personal property" (anything other than land, buildings, and items affixed
thereto), for example any furnishings inside the premises.
2. Nature of Occupancy: Limits the number of people residing in
the premises to those listed (with the exception of any children born during
the term of the Lease).
3. Term of Lease: Establishes the beginning and ending dates of
the Lease, and acknowledges that the Lease might be extended.
4. Security Deposit: A detailed section describing the procedures
and statutory requirements regarding the security deposit. These paragraphs
contain important legal information for both Landlord and Tenant, and the
procedures described therein should be followed systematically.
5. Rent Payment: Important information including the dollar
amount of monthly rent, the date due, the grace period after which a late
fee becomes applicable, the amount of pro-rated rent for an initial partial
month, the type of payment accepted (check, cash, etc.- some landlords
may prefer to only accept certain types of payment), the place at which
rent shall be paid (including the location and address for tendering payment),
notice by tenant that "the check is in the mail" is not a valid excuse
for untimely payment under this Lease since rent is not considered paid
until received, and finally another statement regarding the joint, several
and individual liability of each Tenant for the payment of rent.
6. Consequences of Breach by Tenant: This paragraph contains important
information regarding the consequences of the Tenant's (or persons under
control of the Tenant) violation ("breach") of the conditions and agreements
contained in the Lease. This paragraph warns the Tenant that procedures are
clearly spelled out for what will occur if the Tenant violates the Lease,
and acts as a road-map for Landlord who might be unsure of how exactly
to handle a given situation.
7. Notices: Defines rules for properly delivering written notices
to both Landlord and Tenant.
8. Utilities: Avoids any confusion about utilities by specifically
setting out who pays for what utility services and establishing that Tenant
will arrange for both initial utility set-up, and disconnection of utilities
at the end of the Lease.
9. Notice of intent to surrender: Facilitates planning by the Landlord
by requiring Tenant to give 30 days notice of Tenant's intent to move out
at the end of the Lease term. If Tenant does not give notice, then
at the expiration of the Lease term, the Lease automatically becomes a
month-to-month lease, which either Landlord or Tenant may terminate for
any reason upon giving 30 day notice.
10. Obligations and Duties of Landlord: Details the duties of the
Landlord under state law. Typically, this section closely tracks
the actual state statute. Landlord and Tenant will both find this
section a useful reference.
11. Obligations and Duties of Tenant: Details the duties of
the Tenant under state law, typically tracking the actual state statute.
Landlord and Tenant will both find this section a useful reference.
Most breaches of the Lease occur due to violations by Tenant of one or
more provisions of this section.
12. No Assignment: Establishes that Tenant is not allowed to sub-let
or assign the premises without the express written consent of the Landlord.
Enables Landlord to maintain control over who resides in the premises.
13. Tenant Insurance: Notifies Tenant that Tenant is responsible
for his own insurance, and that Landlord will pay damages for nothing that
is not the legal fault of the Landlord or his agents. Tenant cannot
now claim to have thought that Tenant's property was somehow protected
by a policy of insurance held by the Landlord.
14. Condition of Leased Premises: An important paragraph attempting
to defend the Landlord against certain potential claims by the Tenant that
Tenant is unhappy with the premises. Tenant agrees that he either
examined the premises, or waived the examination, and that Tenant takes
the property in an AS-IS condition. Note that this does not eliminate
the Landlord's obligations and duties as defined in the Lease, but rather
attempts to preempt minor and annoying claims by Tenant. Tenant is
required to pay for repairs to damage, including any damage caused by removal
of any fixture attached to the premises.
15. Alterations: Gives Landlord total control and veto power
over any alterations desired by Tenant.
16. No illegal use: Forbids illegal activities on the premises,
and specifically designates same as grounds for termination.
17. Notice of Injuries: Compels Tenants to immediately report
any serious injuries sustained by Tenant or others on the premises. Important
so that Landlord can fix any problem that may threaten further injury,
and immediately take steps to protect his rights, including contacting
insurance companies, etc.
18. Landlord's Right to Mortgage: Eliminates unnecessary delay
by establishing Landlord's right to sign any necessary documents on behalf
of Tenants in the event of a mortgage of the property by Landlord.
19. Delay in Repairs: Gives Landlord breathing room in the event
necessary repairs are delayed due to unreliable repair men, or other reasons
beyond Landlord's control.
20. Abandonment: Defines abandonment and the consequences
thereof. Before taking any action related to abandonment, it is imperative
that the Landlord contact a local attorney to discuss the situation in
order to be fully appraised of applicable state law beyond the scope of
the Lease.
21. Notice of Absence from Premises: A provision suggesting and
requesting (but not requiring) that Tenant inform the Landlord of planned
extended absences from the premises.
22. Possession of Premises: Entitles Tenant to begin possession
of premises only upon payment of required monies AND removal of any holding-over
tenants by Landlord. Tenant is thus put on notice that Landlord may
have to conclude legal eviction of previous tenants before the premises
are to become available.
23. Delay of Possession: Tenant agrees not to sue Landlord if Landlord
is unable to timely provide possession of the premises. Though this provision
may be unenforceable in some states, it gives the Landlord breathing space
against possible legal action by the prospective Tenant.
24. Materiality of Application to Rent: Indicates to Tenant
that lying or failing to disclose information on the rental application
is not an insignificant act, and will be considered a serious breach of
the Lease.
25. Modification of This Lease: Provides that only written
modifications to the Lease shall be valid. Any passing comments or
verbal agreements are not enforceable.
26. Remedies Not Exclusive: Establishes that the remedies contained
in the lease are not the only remedies available, but that all remedies
under state law remain in full force and effect, and are not excluded due
to their not being mentioned in the Lease.
27. Severability: This provision has the legal effect of ensuring
the survival of the remainder of the Lease if one part is determined to
be void or unenforceable.
28. No Waiver: Helps Landlord deal with problems in the way
he best sees fit, by allowing him to give second and third chances to offending
Tenants without legally abandoning ("waiving") his right to declare a breach
of the Lease due to the offending conduct.
29. Attorney Fees: Establishes that to the maximum extent
allowable by state law, the Tenant will be responsible for paying the Landlord's
attorney fees in the event that the Landlord must take court action against
the Tenant under the Lease.
30. Heirs and Assigns: This section provides that the lease
is binding on the heirs and assigns of the landlord.
31. Destruction of Premises: A detailed procedure in case of total
or partial destruction of the premises.
32. Eminent Domain: Describes the consequences (pro-ration of rent)
to the Lease of the premises being condemned and taken by governmental
use of eminent domain.
33. Landlord Entry and Lien: Rules for Landlord entry into the premises,
and an outline of lien rights of the Landlord. It is imperative to
consult a local attorney prior to taking action involving liens, in order
to be appraised of the details of state law thereon, which is beyond the
scope of this Lease.
34. Governing Law: Establishes which state's law governs the Lease.
35. Additional Provisions: Any additional or special provisions
that the Landlord wishes to include can be placed here.
Signature page: The Lease is not complete or binding without
the signature(s) of the Tenant(s) and Landlord.
