Renting a New Home: A Basic Guide to Your Legal Rights

1. Introduction

Renting an apartment or house can be a daunting experience. The keys to maximizing your chance of making this a positive experience are to use common sense, understand your legal rights as a tenant, understand the terms of your lease agreement and document on paper all transactions and communication with your landlord.

2. Basic Principle of Fairness

Common sense is directly tied to fairness. The principle of “fairness” governs landlord/tenant law and therefore it is necessary for you to understand how the State Legislature and the courts apply this principle. Once you understand this principle, ask yourself, “[w]hat is a fair resolution to this problem?” when resolving a dispute with your landlord.

The basic principle is simple. The landlord owns the property and the structure. You, the tenant, pay rent to the landlord to live in and use the property and structure. The landlord hopes the rent paid by you is at a minimum sufficient to cover the costs associated with owning the property. These costs include payments for mortgage, insurance, certain utilities and keeping the structure in sufficient condition to satisfy minimum habitability requirements. The rent paid by you, the tenant, entitles you to live in and use a property suitable for that purpose. It is important to remember that the landlord aspires, but is not entitled, to profit from this venture. It is important for you to understand that you must keep the property clean, sanitary and your use must not damage the property any more than necessary.

Therefore, if the dispute you face with your landlord relates to the cleanliness and appropriate use of the property, chances are that you bear the burden of paying the costs associated with resolving the dispute. If the dispute relates to the overall habitability of the property then your most likely will bear the burden of paying the costs associated with resolving the matter.

3. Your Legal Rights as Defined by the Lease Agreement

The document that defines your legal rights is the lease agreement. State law defines your rights not covered by the lease agreement. The lease agreement is a contract signed by the landlord and you that defines each of their obligations. Many landlords use a standard agreement drafted by a property management agency which are drafted in accordance with State law. Nonetheless, it is important to read the agreement and understand what these obligations are before signing the document. The lease agreement will contain the following provisions:

1. The duration of the tenancy,
2. The amount of rent to be paid and the frequency of payment,
3. The amount of deposit,
4. The number of people who may live on the property,
5. Whether you may sublet the property,
6. Whether the landlord is obligated to pay utility expenses,
7. The burden on you to maintain the premises,
8. Special restrictions on your use of the property, i.e. whether you may have pets; and
9. A dispute resolution process.

a. Importance of Documenting the Lease Agreement

It is important to define the terms of your lease in writing. You will want to document the terms of your lease even if you or your landlord is a friendly and informal person. This facilitates future dispute resolution and clarifies your relationship. If the terms are not written down, there is a greater likelihood that you will have to go to court to resolve a dispute. This will be expensive, time consuming and sour future relations between you and the landlord. Regardless of the merits and outcome of the court proceeding, it will have a negative effect your future ability to rent in that market.

b. Subsequent Modifications to the Lease Agreement

You and your landlord may agree to modify the lease agreement in the course of your tenancy. If you find that your lease agreement does not adequately address a dispute with your landlord you will want to document the resolution of that dispute in writing and attach it to your lease agreement. This document will define you and your landlord’s future responsibilities concerning that specific matter. However, if your landlord is unavailable to sign this document, draft a memorandum to yourself, sign the memorandum and mail a copy via registered mail to your landlord. You want to send this memorandum, as well as all other communication with your landlord, via registered mail so to prove that your landlord received the memorandum.

4. Common Problems with Landlords and Dispute Resolution

The two most likely problems you will have with your landlord are 1) you wanting to terminate the lease early and 2) the landlord not returning all or a portion of your deposit once your lease agreement expires.

a. Terminating the Lease Early

In regards to the first issue, the general rule is that you are obligated to satisfy the terms of your lease agreement. Meaning, you are obligated to pay rent until the agreement expires or your landlord finds a replacement tenant. However, most landlords are reasonable people and if you provide them with proper notice they will make some effort to find a tenant to replace you. You should give the landlord notice in writing and keep a copy of the notice for yourself. The more time you give the landlord to find a substitute tenant the better. You would benefit yourself by assisting the landlord in this effort as the landlord will charge you for any period that the house/apartment remains unoccupied. The landlord may also demand reimbursement for any costs associated with finding a replacement tenant.

b. Refunding Your Deposit

In regards to the second issue, the first step is to look to the terms of the lease agreement. If the agreement does not define the terms upon which your full deposit is to be refunded then you bear the burden that any damages caused to the apartment/house are typical to normal use. For example, wallpaper peels with age and needs to be repaired. Your landlord cannot withhold a portion of the deposit to pay for new wallpaper. However, the landlord may withhold a portion of your deposit to cover the cost of covering a scratch that you caused in the wallpaper.

This issue raises an important point. At the time you move into a rented apartment/house you should inspect the place for damages. Document these damages on paper and mail a copy via registered mail to your landlord. The more thorough you are at documenting damages the more likely you will have your full deposit refunded to you.

Another issue you may potentially face is your landlord entering the property without your permission. Unless your lease agreement says otherwise, your landlord may not enter the premises without your permission except in an emergency or to conduct maintenance. The exception this rule is when the landlord grants prospective future tenants access to inspect the property. The landlord should give you advance notice in each of these situations.

5. Resolving Disputes With Your Landlord

Certain remedies are available to you if your landlord fails to satisfy their contractual obligations. You should first attempt to resolve all disputes directly with your landlord. The first step is to notify your landlord in writing and give them an opportunity to correct the deficiency. If your landlord fails to correct the deficiency notify them in writing that you will appropriate action. The action you take will depend on your situation but it may include one or more of the following remedies, withholding a portion of rent, making the necessary repairs yourself and subtracting the cost from future rent payments, terminating the lease and suing your landlord in court.

Most states have established a special court system for resolving matters relating to real property. You should consult an attorney to determine the appropriate venue and the merits of your case. Court proceedings will be fact driven and the more you can support your position with paper documentation the greater your chances of success. Keep in mind that it is generally not worth the trouble to take matters to court as it is time consuming and the court fees tend to swallow any sum you hope to recover.

6. Conclusion

Renting an apartment or house for the first time can be daunting. However, if you remember your responsibilities as a tenant and keep your landlord informed as to their responsibilities, your chance of having a positive experience will increase.

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