Unsigned lease affords rights

Rent it Right

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Rent it Right

Janet Portman
Inman News

Q: I have a tenant whose one-year lease expired last spring. I gave him a new, yearlong lease then, but he never signed it. When I asked him for it, he said he misplaced it. He did pay the new, increased rent, and I've had no problems until now, when he revealed he wants to move out, and he's given me 30 days' notice.

But the lease will not expire until March 1. Can I hold him responsible for the entire lease term? It's going to be very difficult to rent this apartment in the middle of winter (one reason I never begin yearly leases in the winter). And can I impose my lease-breaking fee, which was in the first and second lease? --Ron H.

A: In most states, if a tenant stays on beyond the expiration of a fixed-term lease with the consent of the landlord, he becomes a month-to-month tenant, subject to the other terms and conditions of the now-expired lease. If you and your tenant's behavior -- after the first lease ended -- fits within this rule, then he is a month-to-month tenant and is entitled to end the tenancy with proper notice.

As for your lease-breaking fee, it's not clear that this would be legal even if both of you had signed the second lease. Regardless of its legality, however, this much is clear: It doesn't apply to a month-to-month tenant, who has no lease to break.

I'd say that this analysis describes your situation but for one thing: Your tenant has been paying the higher rent amount, which was part of the second-year deal. You may be able to argue that his acceptance of the new rent provision (evidenced by his paying that higher amount) constitutes an oral agreement to the other terms of the new lease. In other words, by abiding by at least one term of the new lease, your tenant signaled his consent to its terms -- which include an obligation to stay until its ending date.

You and your tenant may simply have a new, oral lease for one year, one that he cannot end on 30 days' notice before the lease term is up. On the other hand, perhaps his agreement to pay the new rent constitutes simply a change in his month-to-month arrangement, without turning it into a lease. Because arguments can be made on both sides, the only way to know for certain is to get an answer from a judge in a lawsuit.

Now, assuming you have an oral lease with your tenant, let's get back to that lease-breaking fee. To be on safe legal grounds in most states, such a fee cannot exceed the real damages you suffer as a result of a tenant's early departure. If it turns out that, despite your reasonable efforts, you cannot find a tenant for the remaining months of the lease term, and your fee doesn't exceed the rent you lost during those months, you'll be able to confidently impose it (or retain the deposit to cover it). But if the fee exceeds your actual losses, it's a penalty, and the excess is not legally collectible.

The lesson here is to be vigilant when asking tenants to renew their leases, and to secure their signature (or their agreement to leave at the end of the first lease term) before the end of the first lease. It seems at least possible that your tenant was planning all along to move out during what would have been the lease term, and conveniently "lost" your second lease to avoid having to sign it.

Rather than going along with this "dog ate my homework" excuse, you could have printed out a second copy and presented it to the tenant, along with a reminder that unless he signs it, he becomes a holdover tenant if he stays beyond the end of the first lease term. Holdover tenants can be evicted on short notice, as long as landlords don't accept rent or do anything else that indicates their assent to the tenant's continued occupancy.

Q: Because my balance has deteriorated, I need to use a "walker," a four-wheeled device that I hold onto and push ahead of me. It works fine on flat surfaces, but when I come to a step, I have to lift it up. If there's more than one step, doing so is really difficult.

I've asked my landlord to install a ramp to my front door (to span one step) and another one on the walkway between the street and the building (three steps). He has refused, saying that because I'm "only using a walker" and not using a wheelchair, he doesn't have to do the work. Is this correct? --Dorothea B.

A: Your landlord is approaching your situation, and your request, from the wrong end. When it comes to requests for modifications or accommodations, the first step is to determine whether the requesting tenant has a "disability" under the law. If the tenant has a disability, then to the landlord must move on to consider the appropriateness and reasonableness of the request.

You write that your balance has deteriorated, which has resulted in difficulty walking without assistance. How does that measure up against the fair housing standard of disability? The relevant portion of the law defines a disability as an impairment that significantly limits one or more major life activities. Surely the ability to walk unaided is a major life activity, and from the sounds of things, your unsteadiness is significant because you can't get around without the need of support. It's hard to imagine that you don't have a disability, for purposes of this law.

When a person with a disability asks for a modification (a physical change in her living quarters) or an accommodation (a variation on the landlord's rules or practices, or a physical change in the common areas), landlords are often within their rights to ask for documentation of the disability. But if the disability is obvious, such a request is unnecessary and harassing.

A good argument could be made that a person who cannot walk unaided has an obvious disability, which should technically allow you to skip the documentation step. But for the sake of your ultimate request, it might be a good idea to ask your doctor for a letter in which he or she says that in his or her professional opinion, you are significantly limited in a major life activity, namely walking. In addition, ask that the doctor say that the modification and accommodation you ask for are appropriate to your situation and will enable you to get around the property safely and comfortably.

Armed with this letter, approach your landlord again. The ramp on the common-area walkway is an accommodation that the landlord should provide, at his expense. He can legitimately refuse only if the work would pose an undue burden on his business or property. The ramp to your front door concerns your own rented space, which you may need to pay for. In addition, you will be expected to remove the ramp (or pay for its removal) when you move out.

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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1. Jennie said... on May 9, 2012 at 01:32PM

“i am a renter. the building i live in has been sold/ sale pending, to be signed on may 20, 2012. my lease has been a verbal one at below market for this apt value. 475, when it is worth 700-800. the current landlords already gave the leases they have on hand to the realtor, and the new land lords. the realtor told them they could write a lease for me; but it would have to be at market value. can't my current/soon to be former landlord just write a lease for me at our verbal agreement dating it back to when it started, it was a 2 year lease, which was reinstated at the end of 2 yrs. and agreed to again..verbally to be 2 years, aprox 6 months ago.. but nothing in writing.. is it too late to put it in writing, as the realtor said~ or is he just being shifty? also... if it is too late and we do not write up a lease.. will the new landlord be able to riase my rent right away? thanks”

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