Whether you are a seasoned tenant or a novice, it is always prudent for a tenant to not rush into a tenancy but take time to view the actual unit, read the lease, ask questions and otherwise be a proactive tenant as a tenant who is well-informed of his or her rights is more likely to have a positive rental experience than a tenant who just rushes into a tenancy without fully understanding his or her rights and responsibilities under the lease.
So what can a tenant do to ensure that his or her tenancy is a positive one? Prior to signing the lease, a tenant should inspect the actual unit that would be subject to the lease agreement rather than just a “model” unit. If there are any issues with the unit, the tenant should speak up and notify the landlord in writing about those issues. For example, if an inspection of the rental unit reveals that carpet has to be cleaned, locks have to be repaired or there are loose kitchen cabinets that must be secured, then the tenant should not wait for the landlord to take action but should immediately notify the landlord of these issues in writing so that a paper trail is created as to who will address the issues, how they will be addressed and when they will be addressed.
When it comes to the actual lease, a lease is a contract and should always be read very carefully. A tenant should never sign a lease without first reading all of its provisions. Typical leases contain a lot of “legalese” which a novice tenant may not fully understand. A tenant should never assume the meaning of that legalese but instead should ask the landlord for a clarification or have an attorney review the lease and advise the tenant accordingly.
When reviewing the lease, although the entire agreement should be given careful consideration, close attention should be given to the following lease provisions:
- Default: a tenant should be aware as to what constitutes a “Tenant default” and the type of remedies that are available to the landlord for such a default. There are usually certain breaches for which a tenant is typically given a second chance and which are often referred to as “curable violations” and there are also other breaches, material breaches or “non-curable violations”, which allow the landlord to terminate the lease immediately and seek damages. A material breach is typically a breach that goes to the very heart of the lease or a breach that defeats the essential purpose of the lease.
The lease should also contain language as to what constitutes a “Landlord default”. After all, it is not that uncommon for a landlord to default under his or her own lease. When that happens, a tenant does have remedies. The remedies could be delineated in the lease. However, even when the lease is silent on tenant’s remedies, a tenant should be aware how Chapter 83, Part II of the Florida Statutes, the Florida Residential Landlord and Tenant Act, does contain a mechanism for a tenant to either withhold rent until the breach is cured by the landlord or terminate the lease because of the breach.
- Maintenance & Repairs: the lease should clearly delineate the tenant’s and the landlord’s responsibilities for the repairs to and maintenance of the leased unit.
- Alterations: a tenant typically may not undertake any alterations to a rental unit without the landlord’s prior written consent; otherwise, alterations made without the landlord’s written consent would constitute a violation of the lease agreement. When the landlord does permit alterations, the landlord typically requires the tenant to return the rental unit at the end of the lease term in the same condition it was in at the commencement of the lease term, subject to reasonable wear and tear.
- Security Deposit: a tenant should also be aware of how his or her security deposit will be applied. Some leases permit the landlord to apply the tenant’s security deposit towards unpaid rent. The tenant should also get familiar with Section 83.49 (of the Florida Statutes) procedure for the return of the tenant’s security deposit. There are certain statutory timeframes that a landlord must follow and a tenant should be aware of those timeframes to ensure a smooth return of the security deposit.
- Renewals: it is important to know if the lease contains an automatic renewal clause. If the lease does not automatically renew, a tenant must know what will happen if he or she stays beyond the lease’s expiration date and continues to pay rent. Typically, if the landlord accepts rent post lease expiration, such continuing occupancy by the tenant does not constitute a lease renewal but instead creates a month-to-month tenancy. A landlord, of course, does not have to accept rent after the lease expiration date and will be within his or her rights to treat the tenant that has failed to vacate the premises pursuant to the lease terms as a holdover tenant and move forward with an action for possession.
- Early Termination Clause: a tenant should also pay close attention as to whether or not a tenant may terminate the lease prior to its expiration date and, if so, a tenant must then know how much he or she must pay to be fully released from the lease. There may be other requirements that must be followed and, if that is the case, they should be, of course, followed to the letter. It is now common practice for a lease to contain a “liquidated damages” or an “early termination fee” clause/addendum. When such a clause/addendum is part of the lease, a tenant should then take time to make the appropriate selection based on his or her specific circumstances. Nevertheless, a tenant should be aware that a tenant’s early termination of the lease typically constitutes a material breach of the lease, which, in turn, usually triggers the lease’s “acceleration” clause and/or the default clause that could easily result in a lawsuit being filed by the landlord against the tenant for damages.
- Sublet Clause: a tenant should also be aware if the lease permits a tenant to sublet the premises. Generally, a tenant may not sublet without the landlord’s written permission.
- Joint and Several Liability: if a lease would be signed by more than one person, the tenant should then look for a “joint and several liability” clause as it has become common practice to include such a clause in multi-tenant leases. Such “joint and several liability” clause makes each tenant jointly and severally liable for all of the obligations under the lease, including the payment of rent. For example, if a tenant rents a unit with his or her spouse and they both sign one lease as co-tenants, then if the couple later breaks up and one spouse leaves, the spouse/tenant that stays would be liable for the entire rent. On the other hand, if a tenant is renting a room in a house where each roommate has a separate lease with the landlord, the tenant should only be responsible for his or her portion of the rent due under that tenant’s individual lease with the landlord.
- Pets: if a tenant has pets, he or she should make sure that the lease actually permits a tenant to have a pet in the first place. Some leases prohibit all pets where others place restrictions on the type of pet that is allowed. When a pet is allowed, the landlord usually charges a non-refundable fee deposit.
A tenant should also be aware that lease provisions can sometimes be negotiated with a landlord. If a landlord is willing to make changes to the lease, the tenant should insist that the changes are in writing and made part of the lease agreement.
When a tenant is finally ready to sign the lease, time should be taken to ensure that the “final” draft of the lease contains no blank spaces and reflects all the negotiated changes. Once the lease is signed by all the parties, the tenant should immediately ask for a copy of that signed lease.
Every tenant should also have a renter’s insurance policy to protect their property. Such insurance is relatively cheap and the benefits of having one definitely outweigh the cost of having the policy in the first place.
Ultimately, if a tenant takes the time prior to the commencement of a tenancy to carefully inspect the actual rental unit, review and understand the lease provisions, ask the landlord questions, have the lease reviewed by a third party and only signs the lease after the tenant is fully satisfied with the rental unit and the terms of the lease agreement, the more likely will that tenant’s rental experience be a positive one. If a dispute does arise between a tenant and a landlord during the tenancy, a tenant who has taken the time to understand his or her obligations under the lease from the onset would be in a better position to resolve the matter in the most cost-effective manner than a tenant who had just signed the lease without really reading all of its provisions or who had moved into the leased premises without actually inspecting the premises prior to the move-in date.