Negotiating the Lease

In large properties where there are many rental units, a standard lease form is used and it is not negotiable. The property manager may have some discretion in lowering or raising the amount of a security deposit or even the amount of rent, but written provision concerning notice, termination, late charges and eviction are not negotiable. These items may be negotiable with a private landlord who is using his own form.

If the landlord does not want to change the lease agreement but will agree to the changes orally, do not expect him to follow through. His promise to you is not binding. The written lease agreement contains all the agreements between you and the landlord; conversations and promises cannot change its provisions.

TIP: If you and the landlord negotiate a change, whether it is deleting a provision or adding one, you must both initial the change at its location in the lease agreement.

Unconscionable Lease Terms

Like any contract, a lease agreement can contain almost any terms on which the parties agree. Typically, leases are written to favor the landlord and not the tenant. The tenant has the option to reject the lease and find another rental property if she does not like the terms of the lease. However, leases can go beyond favoring the landlord to being so unfair to the tenant that the entire lease is void because of its "unconscionable" lease terms. An "elaborately lopsided" lease provision favoring one party (usually the landlord) is unconscionable, or unreasonable.

In order to better protect tenants from unconscionable provisions, the Uniform Residential Landlord and Tenant Act (URLTA) prohibits provisions in a lease agreement that require the tenant to:

• agree to waive or forego rights or remedies under the URLTA;
• authorize a person other than the landlord to obtain a judgment against the tenant on a dispute arising out of the rental agreement;
• agree to pay the landlord's attorneys' fees in a dispute; or
• agree to limit the landlord's liability for injuries or damages the tenant suffers through the fault of the landlord.

Example: In New York State, courts have found the following provisions in lease agreements to be unconscionable:

• a clause prohibiting the tenant to assert a defense in any proceeding the landlord brings against him
• a clause raising the rent if the tenant brought a legal action against the landlord
• a "singles-only" clause that would allow the tenant to be evicted if she married or had a boyfriend move in
• a clause prohibiting animals without the landlord's written consent and allowing the landlord to evict the tenant, when the landlord assured the tenants their pet would be allowed in order to induce the tenant to sign the lease

Many states have not adopted URLTA. However, courts often rule in the renter's favor in lease disputes based on unconscionable terms.

If a court determines that certain provisions are unconscionable, the entire lease may be unenforceable. The landlord has a superior position to the tenant because

• renters are not familiar with the carefully drafted legal terms in lengthy printed lease forms;
• the lease is usually carefully drafted and designed solely for the landlord's protection;
• the terms of the printed contract are usually nonnegotiable;
• in most cases, the tenant is not represented by an attorney;
• the landlord not only possesses superior knowledge but also offers a scarce commodity; and
• the landlord is often assisted by expert legal counsel.

Waiver of Lease Terms

A landlord cannot enforce a lease provision if he has previously chosen not to enforce it. The landlord's previous nonaction waives the provision. For example, if there is a rule against pets in the lease agreement and the landlord knows that the tenant has a pet when he renews the lease, he cannot later insist that the tenant comply with the rule.

Example: If your monthly rent has increased, but your landlord continues to accept the original amount (say by cashing your check), he cannot terminate the lease for your failure to pay rent. His continued acceptance of the original amount means he has waived his right to terminate the lease on the basis of nonpayment.

Utilities

Whether the landlord pays the cost of utilities for your apartment depends on the rental agreement. Large apartment complexes typically handle water and gas bills and pay for trash service, and the tenants pay their own electric bills. Some properties are rented as "all bills paid," meaning that the landlords pays water, gas and electricity. Optional services, such as cable television, Internet lines and phone service, are the responsibility of the tenant in both cases.