Lease Review

Can you terminate the lease prior to its expiration date by paying an early termination fee? If not, and you vacate early, you could be held liable for rent due for the remainder of the lease term or until the apartment is re-rented. This could translate into several months' rent. Many leases contain an "acceleration" clause. This means that if you vacate early, any future rent due under the lease becomes immediately due and payable.

If rent is paid late, how much will the landlord charge you in late fees? Some leases provide for a flat late fee, others for a daily late fee, or a combination of both. Still others may charge you no late fees whatsoever. A nearby apartment complex is known to charge a $50 late fee if rent is not paid by the fifth day of the month. Others may charge you a $20 flat fee and additional $2–5 daily. Most leases state that late fees are considered "rent." Consequently, a renter/tenant could be evicted solely for his/her failure to pay these late fees.

Is there an automatic forfeiture (loss) of the security deposit if you terminate your lease early? Some leases state that you automatically lose your security deposit even if you find someone else to take over your lease and the landlord has suffered no damages. The lease may state that the security deposit will be treated as "liquidated damages" for the landlord's re-rental expenses. The landlord will use this clause as a justification to keep your security deposit even if there are no actual re-rental expenses.

One of the most frequently seen problems in the Students' Attorney office is landlords making claim against students' security deposits. Below are several tips to put you in the best position if your landlord makes a claim against you:

• Make sure that you take pictures of your new rental unit before you move your possessions in, especially of any defects in the unit. Keep the pictures in a safe place.
• Make sure to get and keep a copy of any move-in inspection that is done. Don't rely on your landlord to retain a copy.
• If a defect in the unit causes damage, make the landlord aware of it in writing and keep a copy of the notice for your records, such as if a leaking toilet causes staining or warping of a linoleum floor. The landlord may fix the problem but try to make a claim against you for the damages when you move out.
• Read your lease and make sure to comply with all move-out requirements for cleaning.
• Take another set of pictures when you move out. Make sure to include the inside of any appliances, under sinks, and in cabinets.
• Get a receipt for returning your keys or mail them back certified mail, return receipt requested. Avoid drop boxes.
• Leave a forwarding address with your landlord, and make sure to have the post office forward mail to your new address. Landlords must notify you in writing of their intent to keep all or part of your deposit within 30 days. You must dispute that claim in writing within 15 days of receiving it. Contact the Students' Attorney as soon as you receive such a claim, if you need help with the dispute.

Another trend that has recently come to our attention is that some apartment complexes are asking students to pay the security deposit up front when they sign an application form. The application form contains language allowing the landlord to keep the security deposit in the event the student is offered an apartment but declines to move in. A nearby apartment complex provides a 72-hour cancellation period. However, another nearby apartment complex does not provide any sort of cancellation period.

The result of this practice is that we have seen some students who have lost their security deposit without ever having signed a lease or moved into an apartment.

Our advice to you is that you should not give a security deposit with your application form unless you are 100 percent certain that you want to move into a certain apartment complex. Even so, you should negotiate for an extended period in which to change your mind and get your deposit back (e.g., two weeks). Also, you should write down on the application form that the landlord must notify you in writing within X days/weeks as to whether or not you have been accepted and that if they fails to do so, you are automatically entitled to the return of your security deposit. Any changes to a written application or lease need to be in writing. Oral promises are not legally sufficient.

Many leases have a joint and several liability clause. This is the legal term for a responsibility that is shared by two or more parties. A wronged party may sue any or all of the responsible parties and collect the total amount due from any or all of them. That is, if one party is unable to pay, the others named must pay more than their fair share.

If there are others on your lease or sharing your living space, you may be responsible for their share of the rent, including any late fees, if they do not pay.

If a parent or other adult relative signs a guaranty, they will be responsible to the same extent that you would be. In other words, the landlord could seek to bring a lawsuit against the guarantor and/or report any alleged debt to a credit-reporting agency.

Most leases state that you have to provide a list of any problems/damages to the apartment within a certain time (e.g., 24 hours, 72 hours, seven days, etc.). Most leases state that the landlord will provide you this form. If you do not return the inspection report within the time allotted or fail to report any visible damages, there will be a presumption that any damages not listed in the report occurred during your occupancy. Read the lease and make sure you comply with this provision. Further, you should err on the side of caution and note everything that is wrong, even if you consider it to be minor (e.g. stains on carpet, where, how many?). Keep a copy of the inspection report! If a dispute arises regarding whether any damage was preexisting, you will need this report. Don't rely on the landlord to keep this report for you. Also, it may be a good idea to take pictures of the apartment/duplex/house before you move in and date these pictures. You should pay particular attention to the condition of the flooring, carpet, and yard (if you are responsible for keeping up the yard).

Before you vacate any house/apartment, schedule a walkthrough inspection with the landlord or its agent. Ask for a copy of the final inspection report for your file. Read the lease provisions regarding the return of the security deposit. Make sure you do everything you are required to do in order to get your security deposit back. After you have cleaned the apartment, you should take pictures of the premises, including the inside of appliances, bathroom, bathtub, etc. You will then have pictures of the apartment showing what it looked like before you moved in and after you moved out.

Many leases require that you give a thirty- or sixty-day written notice advising the landlord of your intent not to renew the lease prior to the expiration of the lease. Failure to provide this notice could result in forfeiture of the security deposit, as well as your being held responsible for an additional month's rent. These leases state that if you fail to provide the requisite written notice you will have a month-to-month lease until you give the landlord a 15- or 30-day written notice or similar language to that effect.

Your leave will typically state the manner in which notice is to be provided. If you do not give notice in this prescribed way or to the appropriate designated representative, your notice might not be valid and won't count.

It is advisable to obtain renter's insurance if you have valuable personal property such as a television, sound equipment, and/or a computer or laptop. Legally, a landlord is not an insurer of your property. Even if damage to your personal property was caused by a defect in the rental premises, you would still need to prove that the landlord was negligent (the landlord knew or should have known about the defect and that he or she was statutorily and/or contractually liable for breach of a lease provision requiring them to maintain the premises). In addition, many leases contain a limitation on the landlord's liability even when the tenant is able to prove negligence.

Any requests for repairs and/or maintenance should be made in writing and should be dated. Keep a copy of any and all maintenance requests for your records.