Your lease or rental agreement is probably loaded with clauses written to maximize the landlord’s rights and minimize yours. That’s because these rental documents are typically written by lawyers hired by landlords or their trade associations.
Don’t assume, however, that every clause is written in stone. Armed with a little legal knowledge, you’ll be able to figure out whether the terms and conditions of your lease or rental agreement—its clauses—are legal or illegal, subject to negotiation or not. Here’s how to do it.
Knowing when to negotiate is as important as knowing how. Don’t start bargaining the minute you see a promising rental. Take some time to establish a rapport with the landlord and give him reason to want to choose you over other applicants. Even seemingly implacable rules, especially no-pets restrictions, may melt away if the landlord likes you and wants you as a tenant.
Four Types of Lease Clauses
Each rental clause falls into one of four categories, depending on the issue’s connection to any state or local laws on that subject. As we explain below, determining how (or whether) to negotiate with your landlord over a rental clause will depend on which category the issue fits into.
Category 1: A Restatement of Your Guaranteed Legal Rights
Many states have passed tenant-friendly laws covering key areas such as landlords’ access to rental property, the amount and use of security deposits, and your right to a livable home. In addition, you may have important legal rights under federal law (particularly in the area of discrimination) and local law (especially if your community has rent control). Your landlord cannot legally diminish these rights and cannot ask you to waive them. This book explains which important tenant rights belong in this category, and “Placing a Clause in the Right Category,” below, provides further clarification.
Your landlord is obliged to comply with tenant rights but is not usually required to inform you of them in your lease or rental agreement. A conscientious and knowledgeable landlord may relay information on tenant rights in a lease clause as a way of educating you as to how things are done.
You don’t have to bargain for legal rights that are guaranteed under local, state, or federal law. If your landlord spells out guaranteed tenant rights in your rental document, fine, but you’ve got them regardless. So is there any reason to bring them up and ask your landlord to explicitly include your guaranteed rights in your lease or rental agreement? This might make sense if you feel you’re dealing with a shifty (or ignorant) landlord. If he’s merely unaware of the law, you’ve educated him. And if he was hoping to pull the wool over your eyes, you’ve disabused him of that plan.
There is, however, a risk in correcting or educating your prospective landlord. He may regard you as a troublemaker and may concoct some reason to turn you down. Since these tenant rights are yours, anyway, it may not be worth the risk of instant alienation. On the other hand, you’ll learn a lot about the landlord (and whether you want to do business with him) if he reacts in horror when you mention your right to heat, hot water, and a leakproof roof.
Category 2: A Variation of a Negotiable State or Local Law
Not all tenant-protection laws are off-limits to landlord tinkering, as are the ones in Category 1, above. For example, in some states a landlord and tenant may agree that the statutory notice periods for changing or ending a tenancy may be shortened if both agree. In California, for instance, landlords and tenants may agree to shorten the normal 30-day notice period to as little as seven days. If the rental document doesn’t mention the issue, however, state law prevails.
If you see a clause that restricts rights that are given you by a state or local statute, you’ll obviously need to know whether this restriction is allowed in your state—in other words, whether the rule instead fits within Category 1, above. To find out, follow the suggestions for placing your clause in the right category as explained below.
If your state or local law allows the landlord some wiggle room on a tenant-friendly procedure, he’s allowed to take advantage of that liberty. You can’t force him back to the original law. If he’s stubborn, you must be prepared to offer reasons why the variation is either not necessary or not fair. You may be able to work out a compromise or offer a concession of your own in exchange for your full rights under the law. Ultimately, however, if a landlord won’t budge and you feel very strongly about the issue, you’ll have to look elsewhere.
Category 3: Illegal Clauses
Landlords cannot diminish certain tenant-protection laws, such as your rights to a habitable rental unit and to be free from illegal discrimination. These are the rights that fit within Category 1, above. Nonetheless, many landlords attempt to circumvent the law by rewriting it. The best example of this is when landlords try to limit their responsibility to provide habitable housing, despite the laws that exist in the vast majority of states to the contrary. Incredible though it may seem, you’ll see lease clauses in which the landlord states that the premises are not warranted as fit, safe, secure, or in good repair. Most states will not uphold these clauses (Texas is a notable exception). This means that even if you sign a lease or rental agreement that contains a clause absolving the landlord of the duty to offer and maintain fit housing, you can still complain (or use a tenant remedy such as repair-and-deduct, explained in Chapter 7), and a court will not hold you to your “waiver.”
A misstatement of a guaranteed tenant right isn’t the only kind of illegal clause you may encounter. Some clauses are illegal because they violate an important public policy. For example, many landlords use a lease clause that states that the tenant will not hold the landlord responsible for injuries the tenant may suffer as a result of the landlord’s negligence or carelessness. Most courts will not enforce these clauses because our society has decided that, for the most part, people should be held accountable for the consequences of their mistakes.
Remember that we are dealing here with tenant rights that can’t be waived or diminished—in other words, they are nonnegotiable. If your landlord nevertheless attempts to avoid his responsibilities, it means that he is either unaware of your rights or deliberately violating the law. Your approach will depend on your reading of the landlord.
- The landlord doesn’t know the law. If you think the landlord has made an honest mistake, and especially if your options as to other rentals are narrow, you may decide that it’s worth pointing out to the landlord that his clause is invalid. Doing so lets him know that he’s not dealing with a dummy or a pushover, and hopefully he’ll be more careful in the future. There is a risk, however: You may discover that he’ll do everything possible to get rid of you, preferring to rent to people who don’t know their rights.
- The landlord is deliberately violating the law. If every sign suggests that the landlord has deliberately circumvented the law, the wise course is clear: Move on. If you don’t, you can count on problems ahead.
Remain quiet and lie in the weeds. If you really need or want this rental, there is an alternate but risky approach to a shifty landlord. Knowing that a clause is illegal anyway, you may want to be silent and raise your objections when and if the issue comes up. The drawback of this tactic is that making your point after the fact can be a long and tedious process. For example, suppose you sign a lease with a clause that gives the landlord the right to throw you and your possessions onto the street if you’re late with the rent (called a “self-help” eviction, such a clause is invalid in virtually every state). If you’re late and come home to find your belongings on the sidewalk, you may ultimately get your tenancy back and some money damages out of the landlord to boot; but the emotional toll (and the time you spend in court vindicating your rights) will not be worth it.
Go along with the deal at your peril. If you’re really desperate for this rental and you think you can live with the landlord’s illegal clause, you might consider keeping quiet and doing what the landlord has asked. For example, you may agree to pay a higher-than-legal security deposit or an exorbitant late fee. But be forewarned: Agreeing to go along with an illegal scheme has its drawbacks, as explained in “Greasing the Wheels Can Get Messy,” in Chapter 1.
Category 4: A Policy or Rule Not Covered by State or Local Law
Finally, you’ll see lots of lease clauses that are not regulated in the slightest by your local or state laws or court decisions. Examples include provisions for parking spaces, amount of rent (rent control excepted), rent due date, move-in date, rules regarding common area use, and procedures for registering complaints and repair requests. Some of these issues are written as clauses in the lease itself, but many are covered in “house rules,” which landlords attach to leases.
But minor, day-to-day issues aren’t the only ones that may be untethered to a federal, state, or local law. In some states, extremely important issues, such as security deposit limits or rules governing landlords’ access to rental property, are not governed by law. For example, New York and Texas do not limit the amount of security a landlord may demand. Clearly, before sounding off with a haughty demand to reform an “illegal” clause, you’ll need to know whether your state law does, in fact, regulate the issue. (“Placing a Clause in the Right Category,” below, suggests ways to correctly place your clause.)
Issues that aren’t governed by law are the truly negotiable ones. Here you are both free to bargain, restrained only by the strength of your position. If it’s a renters’ market and the landlord’s property is littered with Vacancy signs, you can expect more cooperation than if there are 17 professional couples lined up waiting to take the unit with no demands. Rather than push now for a better deal, it sometimes makes sense to get the rental and then, after you have established yourself as a stable, desirable tenant, ask the landlord to revisit the issue and possibly change that lease clause. Changing rental agreements and leases is covered in Chapter 9.
Placing a Clause in the Right Category
It’s one thing to understand that lease clauses run the gamut from correct restatements of guaranteed legal rights (Category 1) to permissible variations on tenant rights (Category 2) to downright illegal provisions (Category 3) and, finally, to issues that aren’t governed by law (Category 4). But before you can plan a negotiation strategy, you need to understand where a particular clause belongs. For example, suppose Clause 10 of your lease states that the tenant agrees to allow the landlord to enter the rental property with no notice. Are there any laws that protect rental privacy in your state? If not, it’s a Category 4 issue and there’s nothing you can do but bargain for a more considerate arrangement. But maybe your state does regulate the times and manner in which a landlord may enter and doesn’t allow the landlord to deviate from this scheme. If so, that clause belongs in Category 3. Yet again, if the landlord and tenant are allowed to bargain over this issue, it’s a Category 2 matter.
In order to find out where a particular clause falls, you’ll need to read about the issue first, by turning to the appropriate chapter in this book. To continue with our privacy example, you’d turn to Chapter 8, “Tenants’ Rights to Privacy,” to learn about the ways that states do (and don’t) protect tenant’s privacy. Then, you’d turn to the chart “State Laws on Landlords’ Access to Rental Property” in Appendix B to see whether your state has a law (statute) on the subject. If it does, you’d be well advised to read that statute. (In Appendix A, we show you how to access your state statutes online.) Many times, lawmakers want to make sure that the law is understood as Category 1—no variations allowed—and say so right in their statute.
We don’t pretend, however, that it’s always easy to find out where a clause belongs in our four-part scheme. A lot of landlord-tenant law isn’t in statutes at all, but instead in law that is made in court cases and written down by judges in court opinions. And even when there is a statute on the subject, you may have to read court decisions to find out whether it’s okay for landlords to vary the rules (Category 2).
A useful short-cut to properly categorizing a lease clause that concerns you is to contact your local tenants’ rights group or state consumer protection agency for a specific answer. A good rule of thumb is that the more important the issue, such as habitability, the more likely it is to be an ironclad, Category 1 matter. Less important matters, such as amount of notice to change or end a tenancy, are more apt to be open to bargaining (Category 2). And there are several big-ticket issues, such as discrimination, avoiding responsibility for injuries, and physically evicting you without first going to court, that are downright illegal (Category 3) in virtually every state.
Concluding Your Negotiations
Negotiation with your landlord should always end with a written version of what the two of you agreed to. For example, if he has agreed to omit an illegal clause, cross it out and make sure that both of you initial and date the cross-out. Similarly, add signatures and the date if you add a clause to a preprinted lease or rental agreement. If your landlord offers to fix the oven or install security bars on the windows, write this into the lease or rental agreement and set a deadline for work to be completed (ideally, before you move in). Or outline the terms of your agreement in a letter of understanding, explained below. Negotiation techniques are covered in more detail in Chapter 13.