Lease questions – are these enforceable?

lease questions
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Lease questions – are these enforceable?

“I was kinda desperate when moving last year and signed a lease without negotiating. The landlord now wants me to renew for another year. I know I can just let the lease expire and go month-to-month, but there are some things in the old lease that I’d like some advice on. If these are enforceable, I want to discuss changing them in the next lease. The bits I’m curious about are:

* It is mutually agreed by and between the Lessor and Lessee that the respective parties hereto shall and they hereby do waive trial by jury in any action, proceeding or counter-claim brought by either of the parties hereto against the other on any matters whatsoever arising out of or in any way connected with this lease; the Lessee’s use or occupancy of said premises, or any claim or injury or damage arising out of the occupancy of the premises herein.

* That the Lessee, at his own cost and expense, will make and pay for all repairs and replacements to the demised premises, resulting from his negligence. Lessee agrees to pay first $60.00 of all other repairs.

* It is further agreed that if the Lessee shall fail to pay the rent herein reserved when and as the same shall become due and payable hereunder, or if said Lessee shall fail to keep and perform any or all of the covenants and agreements on the Lessee’s part to be kept and performed hereunder, then the term hereby created, at the option of said Lessor, shall cease and determine, and said non-payment of rent or breach of covenant shall operate as a notice to quit, all and every kind of NOTICE TO QUIT BEING HEREBY EXPRESSLY WAIVED…

* That in the event Lessor shall file a complaint summons or any other action in any court for the breach of any covenant of this lease, including the default of the Lessee in the payment of rent, said Lessee expressly agrees to pay reasonable attorney’s fees, plus court costs, interest and notary fees, and any monies tendered and accepted after the filing of such action shall be first applied to the payment of attorney’s fees, court costs, interest and notary fees, and the balance applied to the payment of rent and for any monies paid by the Lessor for repairs or remodeling.

Thank you!”

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41 Comment

  • “Lessee agrees to pay first $60.00 of all other repairs.” Umm, does that mean that say the dishwasher breaks (to no fault of your own) you have to pay the first $60.00 to repair or replace it? Because no, that is the landlord’s responsibility.

    • The landlord doesn’t have to provide a dishwasher at all.

      • Okay…then fridge. My point is if SOMETHING breaks.

        • If the landlord does provide one, though, and doesn’t specifically exclude it or name it in “as-is” condition, he is responsible for maintaining it and paying for all repairs not due to the tenants negligence or misuse.

          • Yeah, not sure why you’re replying to me…it was KenyonDweller that was being trivial. IMO, this person should not have to kick in $60 for “other” repairs.

          • Formerly ParkView, did not intend for that to be a response to you but to the person above you. Sorry about that!

      • No, but wear and tear of all provided equipment is the sole responsibility of the landlord. Since the dishwasher was available to the tenant, it is expected as part of the rental agreement.

    • I know a bunch of people who have put this clause in their lease agreements. I wish I had. The purpose is not to squeeze every nickel and dime out of tenants, it’s because some tenants call and expect immediate fixes to the most silly requests — like a burnt out lightbulb. Yes, some renters think that it is the landlord’s job to change lightbulbs.
      My friend explained the $60 as the deductible on his home maintenance warranty – or the charge from the mgmt company or something similar. He said it just makes tenants realize that they are able to fix some things on their own and reduces the number of 2am phone calls. He also said the first time it happens, he waives the fee. This arrangement allows him to reduce the monthly rent, because he’s not adding more risk into the rental fee than is actually needed. It gives him some flexibility.
      I haven’t done it, and my tenant calls me at the drop of a hat. Honestly, on a 50 degree day, he called because the AC wasn’t working. Open the frigging windows — you just froze the condenser!

      • I think the better solution would be to spell out in the lease what types of repairs or maintenance are the tenant’s responsibility. And have restrictions on hours they can call you, outside of an extreme and urgent emergency. Barring that– I don’t know why you can’t just tell them over the phone to change the light bulb themselves.
        .
        I honestly wouldn’t want my tenant to repair things themselves. Most renters, especially the young professionals, have absolutely no experience with that stuff, and not a lot of incentive to do it right.

        • +1
          You should be spelling out in your lease what exactly is the responsibility of the renter. A/C filters and light bulbs fall clearly under the renters’ responsibility. Anything else/more serious and you should want to hear from the tenant and fix it yourself (or hire a professional). Don’t trust a tenant.
          Also, this maintenance stuff is tax deductible! The only landlords who are cheapskates around maintenance are those who are committing fraud on their taxes. I have no sympathy for them.

          • Agreed that it’s a good idea to spell out in the lease what specifically is the tenant’s responsibility.
            .
            I don’t agree about making the HVAC filter the tenant’s responsibility, though. If your tenant doesn’t change the filter, it could damage your HVAC system — better to do it yourself and know it’s been done properly.
            .
            Replacing burnt-out lightbulbs should be the tenant’s responsibility. I don’t entirely trust tenants to dispose of CFL bulbs properly, so the lease includes wording on proper disposal.

          • I have HVAC filter replacement as a tenant responsibility in my lease, but after realizing that one tenant just didn’t do it (fortunately didn’t hurt anything), now do a “quarterly inspection” and check to see if they’ve done it. If not, I conveniently happen to have one they can buy off of me (at my cost, which is pretty cheap since all my HVAC systems – including my own – use the same size filter and I buy them in bulk online for half of what most retail outlets charge for the same brand). I was shocked to have tenants not do it since I’ve been responsible for that item since I rented my first apartment at 19, and every place I rented would ding me for HVAC cleaning if I didn’t change them (spelled out in the lease/rules, checked at quarterly inspections, and FAR more expensive than filters). Changing them isn’t rocket science, I always show them how, and none of them require tools beyond functional fingers. I’ve also had tenants call me to change lightbulbs and I refer them to the same section of their lease that specifies they’re responsible for that.
            .
            In so many words, I agree to spell out those as the tenants’ responsibility, stick to it, and trust but verify.

          • I might have put it in the lease as a tenant responsibility… except that the way the HVAC return in my condo is situated, it’s a pain to get the door thing open to replace the filter. (It’s on the ceiling, requires a stepladder, requires a Phillips-head screwdriver, etc.)
            .
            And I would probably have difficulty telling whether the tenants had replaced the filter unless I opened up the HVAC return door… so it would be about the same amount of effort as just replacing it myself.
            .
            FWIW, I don’t think any of the places I rented before I bought my own place had anything in the lease about changing the HVAC filter.

          • Ah, yeah, if they were a pain to change, I’d probably just do it myself. In my places, one requires pushing a small “latch” out of the way, pulling the old one out, putting the new one in, and pushing the latch back into position (even if you didn’t put the latch back into position, it would stay in place); one requires unscrewing two knobs (built to be removed using fingers only), removing a small strip of metal, pulling the old one out, putting the new one in, and re-securing the strip of metal; and the third requires only pulling the old one out and putting the new one in (just slide it into place), no “door” or “latch” covering it. It’s so easy in each case I could probably train my dog to do it if he had opposable thumbs. And, again, I always show them how. The usual response is “wow, that’s really easy.” It’s also a good skill for people to have.
            .
            YMMV, but I always had to replace my own with steep penalties for not doing so. I like to replace mine more than recommended (every 2 months instead of every 3, it improves the efficiency of my system) and use higher-quality (10 MERV) filters (I have bad allergies, a dog, and smoke), so I wouldn’t really want a landlord doing it for me, since they’d probably buy the $1 fiberglass filters. I also don’t let the HVAC company that services my building (condo…but we have group service 2x/year because it’s cheaper) replace my filters for me (it’s included in the service, but they bring relatively cheap ones (maybe 6 MERV), and I tell them to just leave my, higher-quality, filter).

  • This sounds like an incredibly unfair lease, regardless of its legality. I wouldn’t want to deal with the landlord who wrote it, regardless of whether they negotiate on the terms.

    • I know someone who put this in his leases, and I’ve expressed my concern over it. Aside from it being unfair to the tenant, it encourages them to not report problems. And often small problems become worse if they go unfixed or an unskilled person tried to fix it themselves.

      • HaileUnlikely

        Honest question: is the person you know who puts this stuff in his or her leases an asshole on a power trip, or did they just download some lease template from the internet and it happened to contain this language and they just left it there, or what? I’m really curious as to how one would even come up with this stuff.

        • He is the type that will nickel and dime everyone, and defend it by saying he’s just protecting himself.

      • The part about having to pay a fee whenever something needs to be fixed, that is. I think he charges $50. His lease was written by a lawyer so it must be legal and enforceable, though this is in VA where tenant laws aren’t as strong. I also suspect he rents to people that are desperate and will put up with questionable things in the lease because it’s their only option.

        • Lawyers make mistakes esp. in areas of law that they don’t specialize. I wouldn’t assume it’s legal because a lawyer wrote it.

          • Why did he pay a lawyer to write it then? And I’m pretty sure it was a lawyer who specializes in VA tenant law.

          • HaileUnlikely

            I imagine somebody pays you to do some job, or at least has done so at some point. You ever make a mistake on the job? Most people do from time to time.

          • If he paid (not clear from the first post,), then I hope it is a specialist.
            To the first point, people feel lawyers know more, so they naturally ask for their help. I’ve had people ask me to take on some serious stuff knowing full well what I do for a living (not criminal).

          • Yeah, I get that. He’s the type that would cross-check everything on his own anyway, so it’s probably correct.

          • You miss the point. A lawyer pushes the limits. If you put something in agreement that isn’t illegal, but may or may not be enforceable, then half the people will follow it without question. I saw this as a lawyer (different type of lawyer) who has literally laughed in the face of a landlord who threatened to enforce such a clause in a lease. If you live in DC and pay rent, ain’t no landlord in their right mind would go through expense of trying to haul you into landlord/tenant court on some BS “he owes me 60 bucks” claim. Bluff? Maybe. But just respond with your best two hour wanking motion, and guess what? It’s over.

  • I’m pretty sure the requirement that a landlord provide a notice to quit before seeking an action for eviction cannot be waived in DC, but I haven’t spent time in landlord-tenant court in quite some time, so please don’t take my word on it.

  • I do L&T law and there can be a waiver of the notice to quit if the lease violation is for non-payment of rent. It’s very common and the first thing I look for when a client give me a lease to review.
    Residential tenants cannot be required to pay attorneys’ fees except in extraordinary circumstances that would normally shift fee burdens.
    Court costs are routinely given. Usually they are about 25 dollars if only a complaint has been filed. A L&T complaint will usually have the court costs written in on it by the court clerk.
    Waiver of a jury trial is expressly prohibited in a DC lease but most trials are bench trials held in the L&T Courtroom but if you want a jury trial you need to file a verified answer and pay about $50 for a jury demand. The case will then be certified to the civil division and drag out for some time. In that time the tenant will be required to make most if not all of his or her rental payment to the court registry and if you miss a payment, even by a day, judgment may be entered against you. Most judges allow one late payment but they are not required to do so. In addition, payments to the court registry must be made in case or money order at the clerks’ office at the L&T Court.
    If you break by being negligent, you should be required to pay. This is part of what the security deposit is for but that only is used upon move out. Paying the first X amount of general repairs, I’m not sure about.

    • “Paying the first X amount of general repairs, I’m not sure about.”

      That would never fly in DC. Maybe in a LL-friendly hellhole like VA, but not in DC.

  • Call or visit the DC office of the Tenant Advocate and ask to speak with an attorney. This is a free service, but it can sometimes be hard to reach a lawyer over the phone. http://ota.dc.gov/

  • Ok am I just stupid or something cause as a landlord I would never put a fee for all repairs in my lease. That is a way to get a leaking toilet for the next 6 months that becomes a huge problem. I don’t understand this concept of nickel and diming tenants. Repairs can be written off in your taxes for that year and improvements can be depreciated out for years. I don’t know about most landlords but I like a good tax break and encourage my tenants to tell me when things break. I don’t want a water leak to become a flood cause my tenants didn’t want to pay the fee.

    • +1 to this one
      I charge my tenants when it’s their fault, but otherwise it’s on me.

    • I agree, but navyard’s post above provided some insight as to why LL’s do this. I don’t know, it makes me more thankful for my tenants then because they do not bother me with small things. Heck, I just had a minor issue fixed for them that they didn’t even ask to be fixed. I just like everything to be in working order and for my tenants to be happy so we can maintain a good relationship.

      • It’s really not that difficult. If someone calls at 2 am, you either don’t answer the phone or you only respond if it is an emergency. You tell them to take care of certain things.

        What you DON’T do is put ridiculous and illegal provisions in your lease that says you have to pay the first $60 of any repair (unbelievable). That is, if you aren’t a complete idiot.

        • HaileUnlikely

          I’m not a lawyer, but I am a bit of a pedant, and I believe the wording above could be argued successfully to mean the first $60 of repairs in aggregate that fall into the category of “all other repairs,” i.e., a one-time deductible of $60, not $60 per repair for each and every repair. I’m sure this is not what the landlord meant, but as written, that’s what I take it to actually mean.

  • IF YOU’RE IN DC—-

    “waive trial by jury in any action” UNENFORCEABLE

    “That the Lessee, at his own cost and expense, will make and pay for all repairs and replacements to the demised premises, resulting from his negligence. Lessee agrees to pay first $60.00 of all other repairs.” UNENFORCEABLE

    “non-payment of rent or breach of covenant shall operate as a notice to quit, all and every kind of NOTICE TO QUIT BEING HEREBY EXPRESSLY WAIVED…” DEFINITELY UNENFORCEABLE

    “That in the event Lessor shall file a complaint summons or any other action in any court for the breach of any covenant of this lease, including the default of the Lessee in the payment of rent, said Lessee expressly agrees to pay reasonable attorney’s fees, plus court costs, interest and notary fees, and any monies tendered and accepted after the filing of such action shall be first applied to the payment of attorney’s fees, court costs, interest and notary fees, and the balance applied to the payment of rent and for any monies paid by the Lessor for repairs or remodeling.” DEFINITELY UNENFORCEABLE

    • The last one, paying attorney’s fees (along with other costs of recovery), is pretty boilerplate lease stuff. I know the attorney’s fees aren’t enforceable in DC except for very serious issues (the court would decide whether warranted and it would become part of the judgement), but I looked at a few leases available for download on the internet and they all had some version of that. In less tenant-friendly places, I’ve been told by LL/tenant law specialists that clause is legal (a LL tried to sue me for normal wear and tear expenses, and hired a high-dollar attorney to do so…I won anyway (NO YOU CANNOT CHARGE A TENANT FOR TIGHTENING A LOOSE SCREW ON A TOWEL BAR (note: not even the one that affixes it to the wall, the one on the bottom that attaches it to the wall-mounted anchor), ESPECIALLY NOT >$50!), but I ran the lease/their claim past the tenant help legal services in said jurisdiction before court happened). In that case, it sounds like the LL might have been cribbing off things they Googled or saw in leases elsewhere, not realizing what DC law says. My personal lease says “legal and court costs determined to be payable by the lessee(s) by the relevant court.” Then if you have to sue, you put those in your claim and the court decides.
      .
      See above that waiver of notice to quit CAN be waived, but only for non-payment of rent. Totally legal, CYA move. A little lazy since issuing notice to quit isn’t exactly difficult, but also avoids any question about whether notice was properly delivered, which if not, would reset the clock on the case progress. One example of “not properly noticed” is that notices to quit in DC have to be delivered in both English and Spanish! Even a native English speaker, if they knew that little bit of law, could have your notice tossed on that technicality and restart the clock.
      .
      The first part of the repair/replacement bit is legal, if not what I would prefer myself. I state that they are “actually and financially” responsible for repairing or replacing things they break/damage through negligence (there’s more legalese there, but it leaves a little wiggle room for me to say “you broke the stove by leaving it on for 3 days/dropping a heavy pot on the ceramic stovetop/etc.,…the new one will be there on Saturday, and I need you to be there to let the delivery guys in (ed.: “actually” responsible), and you also owe me $X (ed.: “financially” responsible)”). I don’t want the tenant trying to jimmy up their own repair, hiring Bobo the clown/repairman to do the work because he’s cheap, or replacing a high-quality appliance with the cheapest thing they can find. No one has actually addressed whether the second part (a “deductible” on other repairs, if you will) is enforceable with a good citation. I would think not, but I’ve also seen it in plenty of leases in different permutations (I passed on a place when shopping for my first place in DC because the lease stipulated that I would have to arrange and pay for any repairs under $50, which the landlord explained as “not having the time to deal with trivial issues”…yeah, just wait until a “trivial issue” turns into something major because the tenant didn’t want to pay $50 and deal with the hassle of having the work done! Also: you probably don’t want to tell a well-qualified potential tenant that you’re cheap and lazy, because they likely have options!).
      .
      You’re 100% right, though, that the right to trial by jury cannot be waived in DC. The right to a bench trial also cannot be waived (small claims has an arbitration option available…no, I don’t mean the mandatory remediation that all small claims cases go through first, I mean after that there is an option for professional arbitration or a trial if remediation fails, and the right to choose between those cannot be waived).

      • But, one more point DIRECTLY to the OP, maybe talk to your landlord about why they included the repair thing. $60 is a common call-out fee for many types of service companies, and they may be trying to avoid paying that when nothing is *actually* wrong in your apartment. Say you tripped the GFCI and called asking for an electrical repair, they don’t want to pay the electrician $60 just to show up and push a button, when nothing was *actually* wrong with your electrical. In that case, you might suggest changing that clause to you being responsible for the call-out fee should no actual repairs be necessary. Then brush up on little things (how to re-set a tripped breaker or GFCI, how to unstick the flush chain in your toilet, etc.) so you are never responsible for a “no service” call fee! I’d say somewhere around 50% of the calls I get from tenants are for issues like that (the toilet is constantly running and that’s because the chain got tangled; they plugged a busted appliance into a GFCI outlet and tripped and all that needed done was resetting the outlet; they overloaded a circuit and the breaker just needed reset (rare with modern electrical, but it *can* happen!)). Now, I usually go over and investigate first since I’m fairly handy and know these are common causes of calls, but not every landlord lives pretty close to their rental properties and has the troubleshooting know-how to determine whether it’s a quick and painless “reset”-like issue or something is legitimately broken. If you like your place, feel the rent is fair, and haven’t been a problem tenant (I assume not if your landlord is asking you to re-up), a discussion like this should be fairly civil.

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