Tenants Should Know a Lease Isn’t the Law
“The rental agent told me the term of the lease and I said, ‘Any negotiation on that?’ and she said, ‘None,’ ” says a Los Angeles dentist who rents a unit in a very popular building. “Then I said, ‘What’s the rent,’ and she told me, and I said, ‘Any negotiation on that?’ and she said, ‘No.’ ”
“All I got to put in the lease,” he laughs, “was my signature. The building is full, like everything around here; they can say this is it, take it or leave it.”
Many people readily sign leases that they suspect protect only the landlord. Some don’t even read them: “The problem is finding the right place,” says a San Franciscan. “Once you’ve made that decision, the lease is incidental.”
A lease is an “agreement between landlord and tenant with regard to the rights and responsibilities of both,” says Richard Elbrecht, head of legal services for California’s Consumer Affairs Department. It differs from a “rental agreement” only in the term: leases set a term of tenancy, usually a year, while rental agreements cover a month-to-month rental.
While a lease could conceivably be written on a cocktail napkin, most are standard forms sold by stationers or local landlords’ associations. As a result, they “probably favor the landlord,” says Charles Fritts, executive vice president of the National Apartment Assn. in Washington, or at least reflect the landlord’s concerns.
Contents of Lease
Typically, residential leases describe the property, set the term, rent and security deposit, state who may occupy the unit (children, adults, pets) and who pays the utilities. And they cover such questions as subletting, the landlord’s right to enter the unit, and perhaps who’s responsible for what repairs. They may also provide, Fritts says, “a recitation of the condition of the property, noting perhaps that the disposal doesn’t work or a window leaks.”
To some extent, “the things they give the tenant are things given by law anyway,” says Myron Moskovitz, co-author of “Tenants’ Rights,” a handbook for California renters. Most state laws on residential rentals, for example, already require landlords to keep the premises “habitable” or to guarantee that a security deposit be “refundable.”
Some leases, on the other hand, may “depart from the law or even violate it,” says Elbrecht. Take security deposits, a common source of misunderstanding between tenant and landlord and common subject of complaint to public agencies. The money is held to compensate a landlord for any unpaid rent or damage to the property: It must be refunded shortly after the tenant’s departure, along with an explanation of any deductions.
Those deductions, however, must cover damage or dirt beyond the usual residue cleaned up between tenants, says Fritts, “damage other than ordinary wear and tear. The owner pays for that, with the cost of the ‘ordinary’ cleanup built into the rent.” Unfortunately, there’s no universal definition of “ordinary wear and tear,” and the landlord usually applies his own after the tenant has left--precipitating an argument that might be averted, Fritts suggests, if landlord and tenant took a “pre-occupancy and a pre-exit walk-through” to agree on who fixes what damage.
Limitation on Charge
However ordinary wear and tear is defined (and Elbrecht, like U.S. Supreme Court Justice Potter Stewart on pornography, says that “people know what it is when they see it”), the law and the courts generally say a landlord can’t charge extra to clean it up--neither by deducting from the security deposit nor charging a “cleaning fee” or a “restoration fee” or anything else similarly named. Nor can he say that any portion of a security deposit is non-refundable.
(Aside from any possible illegality, such cleaning fees may be downright “dangerous to the owner,” Fritts says. “If you’ve taken 100 bucks to clean, the tenants figure they’ve paid and take it as a license to kill.”)
Generally, tenants’ rights granted by law can’t be waived. “In California particularly,” says David Brown, Monterey attorney and author of a two-volume “Landlord’s Law Book,” “there are a lot of things dictated by the law that can’t be overridden by the lease”--the refundable security deposit, for example, or the tenant’s right to “repair and deduct” for what the landlord won’t fix. The lease may be signed, but the particular terms are invalid.
Depending on the market, a landlord’s terms aren’t always non-negotiable. “In a tight market, the tenant is at the mercy of the landlord,” Moskovitz says, “because there are 20 other people behind him.” In such a situation, a long lease protects the tenant from a rent increase; the landlord might actually prefer a month-to-month agreement for its flexibility.
If there’s a housing surplus, and it might take the landlord two or three months to rent a place, he’d “want to lock the tenant in,” Moskovitz says. He may not only negotiate terms, but “throw in a blender or microwave,” Fritts says, “just for signing a year’s lease.”
Is No Guarantee
Ironically, a lease may not really guarantee what Brown calls “income security” for a landlord whose tenant skips out. Under an almost universal “mitigation of damages rule,” he says, the landlord must try to re-rent the apartment: if he does so quickly (and he must prove he tried), he’s considered to have suffered little damage and cannot collect from the lease-skipper. Even if the place sits vacant, a lease-skipper is by definition hard to catch, having purposely sneaked away.
A lease is obviously most effective with an obedient, accommodating tenant, not the one the landlord needs protection against. Elbrecht therefore suggests that leases be less self-protective documents, instead “promoting the good relationship. The landlord and the tenant have complementary interests: The landlord wants a continued flow of income while the tenant wants a guarantee of habitable premises. It can be a win-win situation for both.”
