LEASES FAQ

What is a lease or rental agreement?

When the landlord has decided to rent to the tenant and the tenant has chosen to rent from the landlord, they will enter into a lease or rental agreement. These are contracts, either written or oral, in which the landlord grants to the tenant exclusive possession of a premises in exchange for rent for a period of time.

Do all tenants have the same kind of lease?

No. Most tenants fall into one of two categories.

If the tenant rents for a fixed period of time (that is, a term) and no notice is required to terminate, the tenancy is called a tenancy for years. This tenancy is usually in writing. It must be in writing if the term of the lease is longer than one year.

If the tenancy continues indefinitely, automatically renewing from one period to the next, and if a notice is required to terminate, the tenancy is called periodic. This lease or agreement may be written or oral.

What are the advantages of an oral versus a written lease?

For tenants with an oral month-to-month agreement, the major advantage is the ability to terminate the lease and move out without further rental liability with only a short notice to the landlord. The notice usually must be the same as the term of the agreement, commonly 30 days. Tenants are very mobile (20 percent move each year) and the ease of moving can be an important consideration.

For landlords, an oral lease provides an easy way to terminate the lease and make the tenant move out with only a short notice, or to raise the rent. The landlord is usually not required to state a good reason for the termination, as must be done in other cases.

What are the disadvantages of an oral lease?

Because nothing is written down, the major disadvantage is the possibility of misunderstandings between the landlord and the tenant about the conditions of the tenancy.

What are the advantages of a written lease?

From the landlord’s standpoint, the chief advantage of a written lease is the landlord's right to hold the tenant to pay rent for the entire duration or term of the lease.

What are the disadvantages of a written lease?

The major disadvantage for the tenant is that the landlord may write in express provisions that void certain protections that the law ordinarily gives to the tenant. Also, most written leases—including most of the standard form leases—favor landlords, and the landlord's responsibilities are not very well spelled out.

Does the law regulate the provisions in a lease?

Yes. Both courts and legislative bodies have restricted the provisions in a lease. However, these laws vary by state and locality.

In one example of a law restricting a lease, state courts have struck down lease clauses which provide that the tenant accepts the apartment in "as is" condition and that the tenant must pay the rent regardless of whether the landlord maintains the property. So, if a landlord sues to evict for nonpayment of rent, tenants can defend themselves by arguing that the premises were not worth the full contract rent because of the deteriorated condition. This legal concept is called the implied warranty of habitability. It prevents the landlord from evading the responsibility to maintain the premises even if the tenant signed a lease waiving the right to maintenance.

Many states and municipalities have enacted laws that prohibit some clauses from residential leases. An example of a commonly prohibited clause is "confession of judgment." Such a clause would permit the landlord's attorney to go into any court and to represent the tenant without any prior notice, service or process. The tenant would waive a jury trial, confess judgment to whatever the landlord sues for without any defense, waive all errors or omissions made by the landlord in making the complaint, and authorize an immediate eviction or wage deduction.

Trey Wilson is a lawyer in San Antonio, who frequently represents landlords and tenants in lease negotiations, possession disputes and evictions. He was recently voted by his peers as one of San Antonio's best real estate litigation attorneys. He may be reached at 210/223-4100 or www.sa-law.com