This article examines the law governing the rental of residential dwelling units and the rights and obligations of landlords and tenants; it is not intended to review the applicable rights and regulations that apply to business leases. In most states, transient hotel accommodations are subject to special regulations rather than traditional landlord/tenant law. There is wide variation in state statutes that apply to residential leases- the Guide addresses general principles that are common to most tenancies. An underlying theme applicable to all landlord/tenant relationships is that good faith is required in the performance and enforcement of all agreements or duties. CAVEAT: The law in your jurisdiction may vary from the general rules of law set out hereafter- a competent professional in your area is your best resource to determine your rights and obligations.
A lease or rental agreement is a contract between a landlord and tenant whereby the landlord gives the tenant exclusive use and possession of certain real property (e.g., land, an apartment unit) subject to certain conditions. In modern landlord/tenant relationships, both the landlord and tenant assume obligations either under the lease or by virtue of special statutes (laws) that apply to residential tenancies. A landlord and a tenant may include in a rental agreement terms and conditions not prohibited by any rule of law, including the amount of rent, term of the agreement, and other provisions governing the rights and obligations of the parties.
Oral or Written
A lease agreement may be oral or in writing. Generally, however, leases for a year or more must be in writing to be enforceable. Oral leases are generally limited to month to month tenancies- they allow both the landlord or tenant to terminate the lease with little actual notice to the other. On the other hand, oral leases often lead to misunderstandings between the parties as to the conditions of the tenancy. If the landlord or tenant does not sign and deliver a written rental agreement, acceptance of rent without reservation by the landlord and payment by the tenant gives the rental agreement the same effect as if it had been signed and delivered.
The lease agreement will spell out the obligations of the tenant with respect to the amount of rental payments and when they are due. Often, provision is made for penalties if payments are not made on time, including higher payments (late fees) or eviction. The lease may spell out the rules and regulations that apply to use of the premises and the landlord’s remedies for violations. Ordinarily, the lease will set out the parties’ relative obligations with respect to repairs and maintenance, although the landlord’s obligations to maintain the premises in a habitable (useable) condition is often part of each state’s landlord/tenant law. Other provisions often found in leases address such issues as the amount of and who gets the interest on security deposits, the extent of the landlord’s liability for damages caused by negligence, renewal options, whether pets are allowed and the tenant’s remedies in the event landlords breaches their obligations.
Destruction of Premises
If the premises are damaged or destroyed by fire or other casualty so as to make habitation impossible, the lease is cancelled, and all security deposits and unearned rent must be returned.
A lease provision that limits the liability of the landlord as a result of the landlord’s negligence is not valid in many jurisdictions. Any other provision that violates the law or is unconscionable is unenforceable.
Types of Tenancies
Tenancies may be for a specific length of time, e.g., one year, or periodic, mostly month-to-month. Many periodic tenancies are automatically renewed for a successive period unless notice is given several weeks before the end of any lease period- the specific time for notice is generally controlled by state statute. ‘At will’ tenancies are rental agreements that do not specify how long they will run. Either party can give the other notice of termination at any time- often state statutes will require a minimum notice period, even for an ‘at will’ tenancy.
In absence of an agreement for a definite term of lease, the tenant ordinarily has a term of month-to-month.
Most landlords will require a new tenant to pay a certain amount of money in advance of taking possession of rental premises. The security deposit protects the landlord in the event the tenant damages the property or breaches the lease by failing to pay rent or abandoning the property. Upon termination of the tenancy, property or money held by the landlord as security may be applied to the payment of accrued rent and any damages which the landlord has suffered by reason of the tenant’s noncompliance with the lease. Ordinarily, the landlord must give the tenant notice of intention to assert a claim against the security deposit or must refund it within 14 days of termination of the tenancy. Failure to return the security deposit in violation of state law may subject a landlord to penalties, including triple damages, and attorney’s fees. Many states limit how much security a landlord may take from his tenant to one or two months rent. Some states require the security deposit to be kept in a separate account with the interest belonging to the tenant.
Rent is payable without demand or notice at the time and place agreed upon by the parties. Unless otherwise agreed, rent is payable at the dwelling unit and periodic rent is payable at the beginning of any term in equal monthly installments at the beginning of each month. Unless otherwise agreed, rent is uniformly apportioned from day-to-day. The landlord must advise the tenant where and to who rent is to be paid.
Use of Premises
Ordinarily the lease will provide that the premises can be used only for residential purposes. This means that businesses cannot be operated from residential premises, whether permitted by zoning or not. The tenant may not create a nuisance that impairs the rights of other tenants full enjoyment of the premises.
The vital interests of the parties and public under modern urban conditions require the proper maintenance and operation of housing. Generally, duties of repair and maintenance of the dwelling unit and the premises are imposed upon the landlord by statute. Major repairs are beyond the capacity of the tenant.
Implied Warranty of Habitability
In most states, the landlord has a responsibility to ensure that the rental property is safe and useable as a residence- this obligation is known as a warranty of habitability. Failure to comply with this warranty may allow the tenant to withhold rent, sue for repairs and/or cancel the lease.
A landlord generally has a duty under state statutes to:
- Comply with the requirements of applicable building and housing codes materially affecting health and safety;
- Make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition;
- Keep all common areas of the premises in a clean and safe condition;
- Maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, and other facilities and appliances, including elevators, supplied or required to be supplied by him;
- Provide and maintain appropriate receptacles and conveniences for the removal of ashes, garbage, rubbish, and other waste incidental to the occupancy of the dwelling unit and arrange for their removal; and
- Supply running water and reasonable amounts of hot water at all times.
Tenant’s Obligation to Repair and Maintain
The landlord and tenant may agree in writing that the tenant perform the landlord’s duties, but only if the transaction is entered into in good faith. The tenant is responsible to repair damage to the premises caused by the tenant’s negligence or carelessness and to return the premises to the landlord at the end of the lease term in as good a condition as when the lease began. The tenant is not responsible for damages caused by ordinary wear and tear.
Tenant’s Rights if Landlord is in Violation
If a the landlord breaches the lease agreement or violates state law governing tenancies, and the breach affects the tenant’s health and safety, the tenant may deliver a written notice to the landlord specifying the acts and omissions and that the rental agreement will terminate at a date certain unless the violations are corrected. Additionally, the tenant may recover actual damages, and/or the actual and reasonable cost or fair and reasonable value of substitute housing and/or obtain injunctive relief (an order from the court directing the landlord to do or refrain from doing an act) for noncompliance. If the landlord’s violation is willful the tenant may recover reasonable attorney’s fees. Depending on state law, the tenant may either withhold rent (in some states, the tenant may be required to pay the withheld rent into the court depository) or pay reduced rent if the tenant claims that conduct of the landlord has rendered the premises inhabitable (not fit for reasonably safe and sanitary use as housing).
If the landlord’s breach has rendered the premises inhabitable, it may be considered by the court to be a ‘constructive eviction’, that is an eviction in the eyes of the law. A constructive eviction allows the tenant to abandon the premises without penalty and to recover deposit money and advanced rent.
Unless there are government controls in place or government subsidies, there are essentially no limits to any potential rent increase after the expiration of the rental term.
Approximately 10% of the tenants in the country live in ‘rent controlled’ housing, where the government regulates the amount of rental increase that a landlord can charge. Public housing is rent controlled.
In addition to paying rent on time, the tenant must comply with all obligations imposed upon tenants by building and housing codes that affect health and safety; keep the premises in as clean and safe condition as the premises permit; use in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, and other facilities and appliances in the premises; not deliberately or negligently destroy, deface, damage, impair, or remove any part of the premises or knowingly permit any person to do so; and conduct himself and require other persons on the premises with his consent to conduct themselves in a manner that will not disturb his neighbors’ peaceful enjoyment of the premises (i.e., not create a nuisance).
Landlord’s Access to Premises
A tenant may not unreasonably prevent the landlord from entering into the dwelling unit in order to inspect the premises, make necessary or agreed repairs, decorations, alterations, or improvements, supply necessary or agreed services, or show the dwelling unit to prospective or actual purchasers, tenants, workmen, or contractors. A landlord may not abuse the right of access or use it to harass the tenant. Except in case of emergency or unless it is impracticable to do so, the landlord must ordinarily give the tenant reasonable advance notice of his intent to enter and may enter only at reasonable times.
Rules and Regulations
A landlord, from time to time, may adopt reasonable rules or regulations that apply to all tenants, concerning the tenant’s use and occupancy of the premises if its purpose is to promote the convenience, safety, or welfare of the tenants in the premises, preserve the landlord’s property from abusive use, or make a fair distribution of services and facilities held out for the tenants generally.
TENANT’S BREACH OF THE LEASE AGREEMENT
The law provides an expedited or summary procedure for landlords to remove tenants who fail to live up to their lease obligations. The process of tenant eviction may be accomplished through the courts in 2-3 weeks, in most circumstances. Ordinarily, under state law, the tenant is entitled to written notice advising him/her of the nature of the problem (e.g., failure to pay rent, disturbing other tenants, etc.) and a demand that the problem be corrected within a certain time, usually, 3-7 days. Often, the notice must be personally served or delivered to the tenant or posted on the door to the premises.
Failure to Pay Rent
If rent is not paid when due and the tenant fails to pay rent after written notice by the landlord of nonpayment and his intention to terminate the rental agreement, the landlord may terminate the rental agreement. The landlord must ordinarily give the tenant 3-7 days to pay outstanding rent, depending on state statutes. The tenant will be responsible for all rent due under the lease through the term of the rental agreement. Often, by agreement or statute, the tenant will also be responsible for the landlord’s attorney’s fees incurred in connection with the eviction. If a judgment for eviction is obtained, the sheriff, who will remove the tenant from the premises, enforces it.
Abandonment of Premises
If the tenant abandons the dwelling unit, the landlord must make reasonable efforts to rent it at a fair rental; the tenant may be held liable under the agreement until the unit is re-rented. If the landlord fails to use reasonable efforts to rent the dwelling unit at a fair rental or if the landlord accepts the abandonment as a surrender (return of the premises in lieu of eviction), the rental agreement is deemed to be terminated by the landlord as of the date the landlord has notice of the abandonment.
Waiver of Default
Acceptance of rent with knowledge of a default by the tenant constitutes a waiver (voluntary release) of the landlord’s right to terminate the rental agreement for that breach.
Breach by Tenant other than Non-payment of Rent
If there is a material noncompliance by the tenant with the rental agreement or a noncompliance affecting health and safety, the landlord may deliver a written notice to the tenant specifying the acts and omissions constituting the breach and that the rental agreement will terminate on a date certain. If the breach is not remedied within the statutory time (usually 7-14 days), the rental agreement is terminated as provided in the notice.
Whether or not a tenant’s right to occupy a residential unit has ended, a landlord may not: shut off utilities; change the locks to force the tenant from the unit; or seize the tenant’s possessions to recover unpaid rent.
If the tenant remains in possession without the landlord’s consent after expiration of the term of the rental agreement or its termination, the landlord may bring an action for possession; if the tenant’s holdover is willful and not in good faith, the landlord may also recover penalties such as double rent and reasonable attorney’s fees.
DISCRIMINATION IN HOUSING
Fair housing is a right protected by Federal and State law. Fair housing means that Landlords may not discriminate against tenants on the basis of race, religion, color, national origin, gender, or disability.
Federal Fair Housing Act
42 U.S.C., Chapter 45 – Federal Fair Housing Act provides:
Sec. 3604. Discrimination in the sale or rental of housing and other prohibited practices
… It shall be unlawful –
|(a)||To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.|
|(b)||To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.|
|(c)||To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.|
|(d)||To represent to any person because of race, color, religion, sex, handicap, familial status, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.|
|(e)||For profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, sex, handicap, familial status, or national origin.|
The Fair Credit Reporting Act, a federal law, allows landlords to order a prospective tenant’s credit history to determine whether the tenant has the financial resources to lease property.