Both the landlord and the tenant are generally most concerned about the condition of the property and the amount of rent being charged. Before entering into a lease, however, both parties should also consider:
Tenants should know whether they will be dealing directly with the owner or with a management company, and whether there is anyone on-site or a 24-hour phone number to handle problems. Landlords should screen tenants by requiring an application and security deposit and conducting credit checks or contacting former landlords, but they must understand that their ability to choose tenants is limited. The Federal Fair Housing Act prohibits discrimination based on race, color, religion, sex, familial status, or national origin. The Americans With Disabilities Act requires reasonable accommodation for tenants with disabilities. Moreover, state and municipal laws may protect people based on other characteristics, such as sexual preference.
The parties should discuss roommate situations. Unless all roommates sign the lease, and usually even if all do sign the lease, the remaining tenant remains liable for the full rent even if a roommate moves out. Determine what the lease says about subletting or assignment and whether it contains any policy concerning others moving in without being on the lease.
What, Where, and When
The lease should be particularly clear about the use of common facilities, such as parking, the swimming pool, the laundry room, and the halls, and about the term of the lease. It should note any issues about the condition of the premises and any promises with respect to repair or decorating. It is in the best interests of both the landlord and the tenant that these matters are addressed in a written lease. If there is no written lease, matters such as the duration of the lease may be governed by state and local law, which can also override inconsistent terms of a written lease.
The length of a tenancy may be for a specific time, such as one year. But it also can be for an indefinite period of time, such as a month-to-month lease, or it may be terminable at any time by either party, which is known as an "at will" tenancy. If a tenant refuses to leave when the specified time has ended, the tenancy is called "at sufferance," and the tenant is still responsible for paying rent.
No notice is required to terminate a lease that has a specific end date, but a lease for an indefinite period of time or at-will tenancy requires proper notice, usually in writing, to end the tenancy. Notice requirements may be specified in the lease, but otherwise state law governs. Common law generally requires that the tenant or landlord give notice in an amount of time equal to the period of time of the rental. For example, if a tenant has a month-to-month lease, one month’s notice is usually required.
Rights and Responsibilities
During the term of the lease, the tenant is entitled to physical possession of the premises. Landlords may not enter without notice except in cases of emergency. This right to possession, also called the implied covenant of quiet enjoyment, is breached when a landlord wrongfully evicts or excludes a tenant from the rental property or when a chronic problem with the premises substantially interferes with a tenant's ability to use the property and the landlord fails to correct the problem after being notified.
In residential leases, landlords must make the premises suitable for basic human habitation. State laws and municipal housing codes specify the applicable housing standards in each jurisdiction. Depending on the state, housing code violations may allow a tenant to withhold rent, make repairs and deduct the amount paid from the rent, or obtain damages from the landlord. Check the law of your state before withholding rent. The municipality may also subject the landlord to administrative action and fines. A tenant may not be evicted or penalized by a landlord for reporting housing code violations to the authorities.
A tenant must obey rules about pets, common areas, and noise, and he or she must keep the premises in reasonably good repair, so that at the end of the rental period it will be in the same condition in which it was received, except for normal wear and tear. The tenant must pay rent on time, as specified in the lease. If a tenant fails to pay rent, the landlord may evict the tenant using the courts. Eviction requirements differ among states, but a landlord must abide by local laws and not engage in self-help, such as forcibly removing the tenant, changing the locks, or removing the tenant's possessions. Residential tenants have more legal protections than commercial tenants.
Ending the Tenancy
Most tenancies end with the expiration of the lease term, followed by the tenant vacating the premises and the landlord returning the security deposit. States and cities have different laws regarding the handling and return of security deposits. A tenant who has unsuccessfully written a demand letter may go to small claims court to obtain the return of a security deposit, and some states allow an award of punitive damages if the deposit is wrongfully withheld. Both parties can protect themselves by documenting the condition of the premises at move-in and move-out.
If a landlord must pursue eviction for violation of rules or nonpayment of rent, the process is dictated by state law. Those laws dictate the type and timing of notice, and they provide an opportunity to “cure” by ending the violation.