Must-do's when renting to subtenant

Rent it Right

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Aug. 11, 2011

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The hearsay rule requires people to testify only to what they saw or heard, not to what they were told by someone else. For example, if the question was whether a car ran a red light, I would be allowed to testify, "I saw the car run the red light." But in most situations, a judge would stop me from testifying, "My daughter told me that the car ran the light." The court would instead require my daughter to take the stand, so that the lawyers in the case could question her about where she was, how well she could see the car, what else she saw, and so on. Obviously, if the court let me offer her testimony, there's no way the lawyers could examine or challenge her statement and her credibility.

Your lease addendum tries to circumvent this rule. A police report includes the officer's notes about what people told him. Police and prosecutors use this information to decide whether a crime has been committed and whether they should investigate further. But once the case goes to court, the report cannot take the place of actual testimony from the people involved (there are exceptions, but this is the general rule). If the statements in the police report could be admitted as fact, that would rob the defense of the opportunity to question the officer and the witnesses to the alleged crime, which would make the case a slam dunk for the prosecution.

I doubt that a judge would uphold a tenant's agreement to put the hearsay rule aside like this. While it is true that some legal proceedings relax certain evidence rules, those variations (seen in mediation and some arbitrations) have been considered by the courts and allowed. People who take part in these proceedings have been advised of the changes beforehand, and presumably have made an informed decision to play by a different set of rules.

But this addendum is a different creature. You can be sure that most tenants, like you, do not understand its import. They also probably have no real opportunity to negotiate it. These two factors may make it a "contract of adhesion," which most courts will not enforce, particularly when it benefits only the party who drafted the contract and who stands to benefit from it.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord's Legal Guide" and "Every Tenant's Legal Guide." She can be reached at janet@inman.com.

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