Chapter 3: Before Signing
A. Periodic vs. Lease (Term)
B. The Agreement Can Include . . .
C. Disclosures
D. The Agreement Cannot Include . . .
E. Transfer of Possession
F. Inventory and Condition Reports
G. Checklist Before Signing
OSPIRG and Legal Aid have prepared a model rental agreement which is fair to both the landlord and tenant. (See Appendix B). Your landlord may be willing to consider it, or you may be able to incorporate some of its provisions into the agreement you make with your landlord.
A. Periodic vs. Lease (Term)
Periodic agreements are either weekly or monthly. Unless the agreement sets a definite term (a lease), the agreement is weekly in the case of a "roomer" (where there is a written rental agreement, rent is charged weekly and there are no nonrefundable fees or security deposits 90.100(31)), and is monthly in all other cases. (90.240(5)(b))
Landlords may increase rent with a 7-day written notice for weekly tenants, and with a 30-day written notice for monthly agreements. Landlords may also terminate weekly agreements with a 10-day "no cause" written eviction notice, and monthly agreements with a 30-day "no cause" written eviction notice.
Term agreements are commonly called "leases" and have a starting and ending date. They typically run a year, a school year, a half-year, etc., and usually end without notice when that time is up.
Landlords may reserve the right to raise rent during the course of a lease. Read the rental agreement carefully.
Note: "Section 8" is a type of lease through the local housing authority. The program gives rent assistance to tenants who qualify through HUD. Landlords who accept "section 8" tenants may end a rental agreement without cause upon the ending date of the term agreement.
Standard Lease
Rent can be raised at the end of the term, unless allowed by the lease.
Landlord cannot give tenant "No Cause" notice to move until the end of the lease.
Tenant cannot give the landlord "No Cause" notice until the end of the lease.
Month-to-Month Lease
Rent can be raised with a 30-day notice. Rent can only be raised at the end of the term, unless allowed by the lease.
Landlord can give 30-day "No Cause" notice to move. Landlord cannot give tenant "No Cause" notice to move until the end of the lease.
Tenant can give 30-day notice to move with no cause. Tenant cannot give "No Cause" notice until the end of the lease.
Changes that don't "substantially alter" the agreement can be made with 30-day notice. Changes that do substantially alter the agreement cannot be made unless both parties agree in writing. No changes can be made unless both landlord and tenant agree in writing.
Oral or Written
Rental agreements can be oral or written. However, written agreements have the advantage of providing evidence concerning who is responsible for what. Oral agreements may lead to serious misunderstandings in the future if both parties must rely on memory to resolve a dispute.
Most written agreements are on one of several standardized forms. The agreements may contain conditions not mentioned in the Act but that are legal when signed by the tenant (house rules, etc.), provided the rule is not prohibited by the Act or other laws. (See "The Agreement Can Include...",below.)
The Act also gives landlords some rights which can only be exercised if a written rental agreement so provides. For example, a landlord may serve a certain notices by "nail and mail" only if a "written rental agreement so provides." (90.155(4)) (See Evictions)
B. The Agreement Can Include...
The Act identifies what the rental agreement should contain and what the landlord must disclose to the tenant. If a written agreement is signed, a copy shall be given to the tenant as well as any changes, additions or amendments. Even if you have no rental agreement at all, the law sets out a few basic terms.
"Good Faith"
"Good faith" means honesty in the conduct of transactions. The law imposes an obligation of "good faith" on every duty and remedy in the performance of a rental contract. (90.130) The requirement to act in good faith applies to both tenants and landlords. (90.100(11))
Occupancy Limits
Landlords are free to set reasonable occupancy limits. The tenant must have written notice of the limits when the agreement is signed, or must agree to such limits in writing if they are adopted afterwards. A minimum of two people per bedroom must be allowed. (90.262(3)) Other factors which determine how many people can live in a rental include:
- the size of the bedroom;
- the overall size of the dwelling;
- any discriminatory impact on any of the protected classes .
If the landlord imposes unreasonable or discriminatory occupancy limitations, the tenant should contact an attorney or HUD.
Rules and Regulations
The landlord may adopt rules concerning the tenant's use and occupancy of the premises. (90.262)
It is best to have all agreements in writing for future reference. Rules and regulations are enforceable only if:
- their purpose is to promote the convenience, safety or welfare of tenants; to protect the landlord's property from abuse; or to provide for the fair distribution of services or facilities to tenants;
- they are reasonably related to their purposes;
- they apply to all tenants fairly;
- they are clear enough to inform the tenant of what is expected;
- they are not for the purpose of evading the landlord's obligations; and
- the tenant has notice of the rules or regulations when making the rental agreement or when the rules are adopted.
If a rule is adopted after the tenant has entered into the rental agreement, or if it makes a "substantial modification" to the tenant's "bargain" (i.e., it makes a real difference in the value of the tenancy to the tenant), the rule is not effective unless the tenant has consented to it in writing. (90.262(2)) If the tenant does not disagree to the rule in writing and pays rent to the landlord, the courts have ruled that the tenant tacitly agrees to the rule.
Examples of such addenda are smoke detector agreements, pet agreements, yard and lawn care, etc.
Note: A month-to-month tenant can be evicted with a 30-day "no cause" notice for refusing to consent to a new rule, unless the eviction is retaliatory or otherwise unlawful. (See Retaliation and Discrimination)
"Drug and Alcohol Free Housing"
Within the Act, this term refers to a specific type of housing where each of the units on the premises is occupied by at least one tenant who is a recovering alcoholic or drug addict. The person must be actively participating in a program of counseling and rehabilitation. (90.243)
To qualify as "drug and alcohol free housing," the landlord must be a non-profit corporation and must provide:
- a drug and alcohol free environment;
- an employee to monitor tenant compliance; and
- individual and group support for recovery.
The rental agreement must be in writing and must provide that:
- tenants are not to use or possess alcohol or drugs on or off the premises;
- tenants' guests shall not use or possess alcohol or drugs on the premises;
- tenants are to participate in a specified recovery program;
- the landlord is to receive written quarterly reports about a tenant's program; and
- the landlord may require tenants to take urine analysis tests.
If a tenant fails to comply with the terms of a drug or alcohol free housing agreement, the tenant may be evicted upon 48 hours written notice from the landlord.
C. Disclosures
The following items must be disclosed to both applicants and tenants before entering into a rental agreement:
Ownership
Tenants must be informed in writing of the name and address of:
- Any person authorized to manage the premises; and
- The owner or person authorized to receive tenants' notices and demands, and to be served with summons and complaint.
This information must be kept current. If this disclosure is not made, the person who acted as landlord (i.e., manager or agent), may be held liable for landlord obligations under the act. (90.305) That person is also deemed a landlord under the act. (90.100(4))
Lead-Based Paint
Sellers and landlords of all housing built before 1978 must provide a disclosure with all known information about lead based paint and a pamphlet that provides details regarding health risks associated with lead based paint.
Penalty: Tenants may seek damages up to three times the amount of the injury and $10,000 in federal court if the landlord fails to provide the disclosure and the pamphlet.
"Meth Labs"
If the rental has been used as a lab to produce methamphetamines or contains any other serious health hazard, the rental agreement must disclose this fact.
Penalty: The tenant can end the tenancy upon finding out that the landlord did not disclose this information, and the landlord must return prepaid rent and deposits.
Utilities Which Benefit the Landlord and Other Tenants
The landlord must disclose in writing whether the tenancy will be paying for any utilities or services (i.e., electricity, gas, oil, water, hot water, heat, air conditioning, garbage collection or disposal) which will benefit the landlord or other tenants. This is determined if a utility or service paid for by the tenancy is delivered to any area other than the tenant's unit. (90.315(2))
Penalty: The tenant may recover twice the actual damages or one month's rent, whichever is greater, if the landlord fails to disclose this in writing at or before the beginning of the rental agreement.
D: The Agreement Cannot Include…
The Act prohibits anything which waives the rights given to the tenant by the Act. The Landlords cannot rent a unit "as is" to get out of their legal obligations. (90.245) The Act also provides remedies for other "unconscionable" or grossly unfair provisions. The following types of terms are unenforceable and illegal.
- any and all terms that waive any of the tenant's rights or remedies under the Act; (90.245(1)(a))
- "lockout:" switching locks while a tenant is out of the unit. The only way to evict a tenant is through the courts; (90.400(2), (90.435), (90.375)
- "landlord's lien:" a lien in which a landlord may hold a tenant's property if the tenant defaults on the rent; ( 90.420)
- "confession of a judgment:" a clause in which the tenant gives up the right to be heard in court by granting the landlord the right to a judgment against the tenant before the landlord has even filed a lawsuit; (90.245(1)(b))
- "exculpation or limitation of liability:" the tenant agrees not to sue the landlord for negligence or not to sue for more than a given amount; (90.245(1)(c))
Penalty: The tenant may recover actual damages and a penalty of up to 3 months' rent if the landlord deliberately includes such provisions(s) in the rental agreement and attempts to enforce it. (90.245(2))
E. Transfer of Possession
Transferring possession is when access to the property is given either from the landlord to the tenant or vice versa. (90.147) Transfer of possession may be different from the ending date of a rental agreement (i.e., if a tenant abandons the property of if there is an eviction proceeding). (See Evictions and Other Landlord Remedies)
Transfer of possession from the tenant to the landlord occurs when:
- the tenant gives the actual notice that he/she has given up the right to occupy the rental. The notice may include the return of the keys;
- the landlord reasonably believes that the tenant no longer claims the right to live in the rental after the ending date of the tenancy;
- the landlord reasonably knows that the tenant has abandoned the rental.
F. Inventory and Condition Reports
Much time is spent in court disputing the condition of a unit and the deductions from security deposits. Performing an inspection gives both parties exact knowledge of the condition of the unit, and helps to prevent future misunderstandings which could lead to the landlord withholding the deposit. (See Recovering the Deposit)
The landlord is not required to inspect the unit when you move in or out. Use the Inventory and Condition Report form in Appendix A to do the inspection with the landlord if possible, and note in writing all damage, disrepair, and dirt. If the landlord is unavailable, ask a friend to help.
If the landlord promises to make any alterations, repairs, or other work, it should be detailed in the written agreement and initialed by both parties.
If tenants discover any problems after moving in, they should put a description in writing and send a copy to the landlord to amend the move-in documentation.
G. Checklist Before Signing
1. Have you read everything before you sign? Read everything front and back very carefully and take all the time you need to do so. Once you sign a document, it is difficult to argue that you didn't read it.
2. Have you written it all down? Even if the landlord doesn't use a written agreement, you should write everything down. Your written agreement should include all the terms you have agreed on at the time you sign it. Terms or promises not written into the agreement are unenforceable and often end up in court.
3. Never leave blanks. Never sign anything with blanks to be filled in later. Either complete all blanks or draw a line through them.
4. Have any promises to make repairs at a later date been noted in writing? Promises to make repairs when a landlord is trying to rent a unit may be forgotten after time has passed.
5. Do you clearly understand what you are signing? If you don't understand, ask the landlord to explain. Write down the landlord's explanation on a separate piece of paper and have both parties initial it as your mutual understanding of the provision. It may be hard to argue that you didn't understand something after you have signed it.
6. Don't be reluctant to cross out a word or even a whole paragraph. The provisions you and the landlord write into the agreement by hand indicate that you have reached a mutual agreement. In most cases, the handwritten modification will be more effective and will be enforced by a court of law in spite of what the printed form says. Be certain that both parties initial any modification.
7. Have you carefully inspected the unit using the Inventory and Condition form? This will avoid future disputes about breaks, damages, or cleanliness.
8. Did you get a copy of the signed rental agreement? The landlord is required to give you a copy of the rental agreement, (90.240(2)) and it is best to get the copy in person at the time you sign it. If there is any later dispute, the first thing you need is the agreement. If you lose your copy of the lease, you may request that the landlord make you a copy at no more than 25 cents per page. (90.305(4))
Chapter 2: Discrimination | Top | Chapter 4: The Security Deposit
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