Any lease provision that restricts your rights as a tenant may prove to be obnoxious if and when the landlord chooses to use it against you. There are probably as many oppressive lease clauses as there are landlords and their inventive attorneys. Standard form lease are notorious for including many such clauses. If is perfectly legitimate and worth your effort to try to negotiate the exclusion or modification of obnoxious provisions.
The following is a list of common lease provisions the tenant should watch out for. Again, remember that you must carefully read and understand the entire lease, because often the most potentially harmful clauses are couched in legal language that is incomprehensible to a normal human being.
- Waiver of your right to privacy - This clause typically allows the landlord to enter your home without your consent and sometimes without your knowledge for purposes of inspection, repair, or display. Although this may be acceptable for emergency repairs, you will want to negotiate for reasonable advance notice of entry (twenty-four to seventy-two hours) in all other situations.
- Waiver of your right to jury trial - This clause seeks to deny tenants the right to trial by jury in eviction proceedings, which is guaranteed by law in many states. It deprives tenants of their choice of jury trial, which in some instances may be more favorable than a specific judge. Many states recognize this waiver as valid if it is made knowingly, intelligently, and voluntarily.
- Waiver of your legal right to notice - This clause permits the landlord to do such things as evict you, raise the rent, or change the terms of a month-to-month tenancy without giving you the written notice required by the state law.
- Waiver of your right to a day in court - This clause, sometimes called "confession of judgment," permits the landlord to evict you in a court proceeding without your being present. Most jurisdictions have specifically outlawed this practice; others will accept legal arguments against it. However, by far, the best way to avoid this problem is to have the clause stricken from the lease agreement.
- Waiver of other legal rights - These clauses seek to remove the benefit of recently achieved tenant rights either by having the tenant forego the right entirely or by having the tenant consent to limitations. This general waiver clause can be used to defeat any of the rights discussed in upcoming chapters such as repair-and-deduct, warranty of habitability, rent abatement, and retaliatory-action protections. Many jurisdictions do not allow waiver of these basic rights.
- Limitations on landlord liability - These provisions, usually referred to as "exculpatory clauses," attempt to limit the landlord's liability for acts that cause damage to the person or of such clauses but in those that do, a tenant who suffers personal injuries (for example, a twisted ankle in a fall down a poorly maintained flight of steps) must pay the medical bills and all other expenses, having given up the right to sue the landlord.
- Prohibition of subletting or assigning - These provisions seek to prohibit a tenant who wishes to leave before the lease term expires from substituting another tenant for the remainder of the lease without the landlord's written consent. While some states and many leases require that the landlord's consent not be unreasonably withheld, all states uphold the basic validity of this lease provision. Therefore, this provision is usually difficult to negotiate.
- The tenant agrees to pay the landlord's attorney fees and legal costs - This clause attempts to make the tenant responsible for payment of the landlord's legal cost arising from a dispute over the terms of the lease agreement, often without regard to which party prevails in court. If such a clause exists in your lease, you may find yourself paying the landlord's legal expenses even in an unsuccessful attempt to evict you. Ordinarily, the award of attorney's fees and costs is at the discretion of the court. Many courts will award fees and costs only to the winning party, regardless of any lease clause to the contrary.
- The tenant agrees to pay fees or penalties for late payment of rent - This clause requires the tenant to pay either a set fee, daily penalty, or a percentage of unpaid rent in the event that rent is not paid on time as specified in the lease. The courts will usually refuse to enforce the collection of late charges if they do not reasonably relate to the landlord's actual damages. If, for example, you have agreed to pay $10.00 per day for every day you are late in the payment of rent (even if your rent is $500 per month), you will have a good argument to the court that this amount is unreasonably high, and therefore, void as a penalty.
- The tenant agrees to assume the landlord's responsibility for maintenance and repair - This clause attempts to shift to the tenant maintenance and repair responsibilities which the landlord is usually obligated to perform by state or local law. Thus, in some jurisdictions, the tenant may be responsible for the performance of major repairs. However, it is a fair generalization to say that states and localities with the warranty of habitability and/or strong housing code do transfer of maintenance and repair responsibilities for rented single-family dwellings or where the landlord offers separate compensation for that service. Because of state-by-state variations, it is essential for you to check the applicable local law.
- The tenant agrees to pay a rent increase during the term of the lease if specified expenses of the landlord increase - This provision, commonly called an "escalator clause," allows the landlord to pass on increases in operating expenses such as taxes, utility, maintenance, and capital improvements by raising the tenant's rent. The courts will almost uniformly enforce such provisions if the rent increase actually reflects the increase in costs. BEWARE: This clause could justify a substantial increase in your rent.