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What Is In Your Lease - Red Flags

Updated on January 4, 2013

Intro

In many leases, you'll find things that should make you run for the door, but you won't know what their effect is unless you've been educated to look out for them. In this piece, I'll give you a few of the red flags I've noticed as well as some legal assurances. Unfortunately, leases are based on state law, and each state has their own system in place to handle landlord/tenant law. Wherever possible, I will keep the information as general as possible, but the law may not apply in your location. At least it will give you something to look for regardless.

Some background to establish my credibility. I'm an attorney in the Raleigh-Durham area of North Carolina who works a lot with landlord/tenant issues. I've also rented apartments from a wide variety of landlords, and reviewed even more leases than that. On top of that, I've worked with landlords to construct more friendly leases for their tenants, so I have an understanding of why certain provisions are in the lease agreements we sign.

Disclaimer of Liability

I'm putting this flag at the top because it is a pressing issue in one of my cases, and is quite a fascinating issue as well. When a landlord disclaims all liability for any reason, you should pause for a second. What they're trying to say is that if there is faulty wiring in your apartment and your place burns down leaving you with third degree burns, you cannot sue them. if this is enforceable in your state, do not sign this lease. Fortunately, exculpatory clauses like this are rarely enforceable for things such as housing, hospital services, and other necessities in society. Here, in North Carolina, the specific statute that is relied upon for invalidating this clause is N.C. Gen Stat 42-42(b) and the case you want to rely on is Tatham v. Hoke as well as many others.

Your landlord should always have a duty to ensure your apartment is habitable and they should be responsible for any acts or omissions that may cause you or your property harm. If you somehow get into a lease where they are not responsible, you can bet they won't care to make your place safe.

Right of Entry

This is a rather obnoxious one I've had the personal experience dealing with. I will not sign a lease unless it states that the landlord is not allowed to enter without the expressed, written, permission of the tenant or in cases of emergency. The emergencies will then have to be defined as something to the extent of losing life or limb, or risking total destruction of the property. Many landlords reserve the right to enter at any time for any reason, and I personally feel like you're not really in possession of an apartment if the landlord maintains those rights.

If you sign a lease that allows unlimited access to your apartment, you still have some recourse. The access must still be reasonable. You can expect that a court will not allow a landlord to come in and take a nap on your couch, regardless of what the lease says, absent a provision specifically saying he may sleep on your couch. You can also renegotiate your agreement to limit their access later on, if they allow that renegotiation. If not, there are nonlegal remedies I've found to be quite successful. First, I got a dog. Make sure you're allowed to have dogs under your lease before you do this. That strategy was quite effective on its own, but I wanted to be sure I had control over my space, so I installed a home security system. If my landlord ever tried to enter my apartment without me entering the code, he or she would have been arrested. I, of course, let me landlord know there was a security system in place, and I never actually refused to let my landlord in. He actually needed to get into my apartment far less after I did those two things.

If you cannot accomplish either of those two strategies and cannot renegotiate your lease to restrict entry, you can petition a court to change the lease. In most states, landlords must be reasonable in their entry and must limit access to a limited set of reasons. Landlords may not use their power to spy on you or harass you, nor can they take anything that belongs to you. If any of that happens, you then have a legal response beyond just changing the lease.

Notice Waiver

I almost missed this section in one lease. The landlord wanted me to waive my notice of an eviction proceeding. Sneaky strategy I think, but I wasn't going to have it. I'm not saying I was a bad tenant or anything, but without notice, my landlord has the ability to go to court, make up a lie and get me evicted without me being able to defend myself. That kind of circumstance is not acceptable to me, as it shouldn't be to you. If you see this provision in your lease, cross it out. If your landlord doesn't allow changes to the lease, go somewhere else because that's a sneaky strategy that shouldn't be accepted.

Choice of Law

This is an interested topic that could extent to volumes of books, but to keep it brief, some landlords will try to obtain more favorable laws by including in their lease that the agreement will be governed by the laws of some other state. This provision may be enforceable, or it may not be. Like I said, it's a topic that could take up a bookshelf. What you need to know is that you shouldn't sign a lease that says it is governed by out of state laws.

Nor should you sign a lease that limits your ability to sue or where you can sue. Arbitration clauses are common, and arbitration is typically fair. What arbitration is not is favorable to the tenant, like juries sometimes are. I do not like waiving my ability to sue in open court in case there is a disagreement, so arbitration clauses are off limits for me in lease agreements. Furthermore, any provision that says you have to sue in the court of another state is a sign to leave immediately. Once again, not sure if they're enforceable in leases or not, and that will vary wildly, but you shouldn't sign something that would force you to travel great distances to obtain justice. That is just another sneaky strategy to avoid paying for any wrongdoing on their part.

Disclaimer

The purpose of this article was for educational purposes only, and was not created to be legal advice nor create an attorney client relationship. If you need an attorney, please contact one.

I've enjoyed sharing my knowledge, and I hope you learned something. If I can be of any help, please comment below or visit my webpage www.bobholzlaw.com.

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