Read the Lease Before You Sign It, Including Important Fine Print

Robert S. Griswold | Steven R. Kellman | Ted Smith
28-September-2003 Sunday

This column on issues confronting renters and landlords is written by Counselor of Real Estate and Certified Property Manager Robert Griswold, host of Real Estate Today! with Robert Griswold (10 a.m. Saturdays on News Radio 600 KOGO, or on the Internet at www.retodayradio.com), and by attorneys Steven R. Kellman, director of the Tenants' Legal Center, and Ted Smith, principal in a law firm representing landlords.

QUESTION: My new landlord made me sign a new lease for the unit I've been living in for nearly two years. Well, I thought it would be the same as the previous lease which was month to month. So I signed it, and didn't read it carefully enough. It was printed so, if I glanced at it, it looked like a month-to-month lease. Now, I want to move but I can't. There is nothing wrong with the premises but there is a flight of stairs leading to my apartment. If my ankle is sprained from playing basketball, can I say that the building is not accessible and terminate my lease early?

ANSWER: Kellman: A lease is a binding agreement if it correctly contains the required terms including the rental address, parties' names, the address of the landlord to pay the rent, rental term, amount of rent, required disclosures, etc.

Some leases may be lacking required items or they may have other defects. Also, they may have terms that actually allow for terminating the agreement. The fact that you did not read the document before signing it will not let you out of the obligation if it turns out to be a valid lease. Lesson learned.

In the scenario you presented to break the lease regarding a sports injury, all the landlord would have to do is make a reasonable accommodation to you for that condition. Also, a brief sports injury is not necessarily a disability triggering ADA or other fair housing law protections.

Do not despair, there is still hope to get out of the obligation without resorting to claims that may not be in good faith. You can negotiate a buy-out price with the landlord to cancel the lease. You can present replacement tenants by your own efforts of advertising. You may sublease or assign the lease as long as you follow the terms for that procedure. You may offer a move in bonus to attract a replacement tenant.

Once you move, your landlord must try to rent the unit. Once it is rented again, you are relieved of your rent obligation although in some cases that obligation may be reinstated against you if the replacement tenants fail to pay any rent during the balance of the lease term. As you can see, this can be a tricky situation. Get legal advice before taking action to break the lease.

Property Manager Griswold: You failed to read the document and now that you know what it says you want to create an excuse to get out of your obligation. Clearly you should have read the document carefully before signing and any excuses that it looked the same or that the way the dates of tenancy were inserted was confusing are not relevant.

The accessibility excuse won't work in my opinion and is obviously contrived. The only way accessibility could be grounds to seek termination of the lease is if you do something drastic (break both legs, etc.) and can get a doctor to sign a very firm letter indicating that you must move under the provisions of the Americans With Disabilities Act.

You have learned a lesson that you must always read every document and fully understand it before signing.

Turn this around. What if your landlord changed his mind and wanted to break the lease because he found a tenant that would pay more or would commit to a longer term? Should a landlord have the right to create some excuse? Of course not.

A lease is binding upon both parties and it is very unfortunate that so many tenants fail to realize that they are making a significant financial commitment when they sign a lease and any changes in their personal plans do not allow them to simply walk away.

Question: In the process of moving out of my apartment, the stove got damaged and two of the burners stopped working. Apparently, they can't be repaired. The stove is approximately 15 years old and now my landlord wants to withhold an amount from my security deposit equivalent to the cost of a new stove. Can he do this? I understand I'll have to pay something but do I have to pay for a brand-new stove?

Property Manager Griswold: Based on the fact that the stove was damaged during your tenancy, the landlord can indeed deduct the actual reasonable costs of repair from your security deposit.

Because the stove is so old, the cost of parts and actual repair may be greater than the cost of a similar, new stove.

If this is the case, then it is more cost-effective and reasonable to charge you for the new stove.

In other words, you should be charged the lesser of repairing the old stove or the cost of a new comparable stove. Stoves have a fairly long life and because they are modular the parts can easily be replaced as long as they are still available.

You can make an argument that the remaining life of the stove was finite but the bottom line is the landlord only has to make the repairs or replace the stove due to the damage you caused.

Question: One of my tenants just moved in and signed a six-month lease. At the time this tenant signed the lease we asked him for first and last months' rent and a security deposit. He told us he couldn't pay the entire security deposit or any of the last month's rent upon move-in but that he would pay the rest in two weeks. He did not pay as promised but we did eventually get the last month's rent from him. He then promised to pay the balance of the security deposit.

Our experience with this tenant is that he has lied to us on a number of occasions about when he will pay money (the check is in the mail, etc.) and also about his employment, and has now become surly when we ask him for the deposit. The rental agreement he signed with us clearly stated that he would pay first and last months' rent and the security deposit. At what point can we consider him to be in breach of the lease and give him a 30 day notice?

Tenants Rights Attorney Smith: Your tenant is in violation of the lease agreement under which he holds possession of the premises. The lease violations you refer to subject the tenant to possible eviction. However, you may not use a 30-day notice. The 30-day is used to terminate month-to- month tenancies only, not leases.

In this case you have a six-month lease. You will need to serve a three-day notice to perform or quit which requests payment of the balance of the deposit or possession of the premises within three days after he is served with the notice.

If he fails to comply, you will have the right to evict despite the six-month lease. Your retention of the last month's rent should not defeat your right to evict based on the lease violation.

In residential cases, I encourage my landlord clients to get away from collecting the last month's rent, and, instead, call the entire amount held a security deposit. This gives you maximum use of the money for rent, cleaning and damages. By calling the entire sum a security deposit, you are not required to give credit against rent before the tenant vacates.

IF YOU'RE A TENANT OR LANDLORD, the authors stand ready to answer your questions in this column, although letters cannot be answered individually. Write them at: Rental Roundtable, Homes Section, San Diego Union-Tribune, P.O. Box 120191, San Diego, CA, 92112-0191. Or you may e-mail them at rgriswold.sdut@retodayradio.com

Copyright Union-Tribune Publishing Co.

Back to 2003 Rental Roundtable Index

Robert Griswold and the Real Estate Today! radio show strongly support the intent and the letter of all federal and state fair housing laws. As a reminder to all owners and managers of real estate, note that all real estate advertised is subject to the Federal Fair Housing Act, which makes it illegal to advertise "any preference, limitation, discrimination because of race, color, national origin or ancestry, religion, sex, physical disability, or familial status, or intention to make any such preference, limitation or discrimination." Additional state and/or local fair housing laws may also apply. Be sure to inform all persons that all dwellings offered or advertised are on an equal opportunity basis.

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Revised and Updated - Wednesday, April 26, 2006

Robert S. Griswold, CRE, CPM, CCIM, PCAM, GRI, ARM
Griswold Corporate Center
Griswold Real Estate Management, Inc.
5703 Oberlin Drive, Suite 300
San Diego, CA 92121-1743
Phone: (858) 597-6100
Fax: (858) 597-6161
Email: rgriswold.ret@retodayradio.com