Residential Leasing

A rental agreement between a landlord and tenant is the most common type of land use arrangement.  A lease is where the tenant actually holds a possessory interest in the property.  This is different than a license, which only grants a limited use for the licensee for a specific purpose, (e.g. purchasing a ticket to see a baseball game).  A rental agreement, whether spoken or written, is a contract.  Therefore, any issues that arise out of the rental agreement are specifically handled by contract law.

Types of Rental Agreements

Legally, these are termed "tenancies."  However it is still choosing the type of agreement one wishes to abide by.  As with anything, there are positives and negatives.  The best you can do, is to educate yourself on each type, consider your personal situation, then negotiate with the landlord for the type of tenancy you wish to take.  Most landlords have a basic contract they use with no option for different types of tenancies, however it is always possible to write into your contract whatever terms you see important. 

  • Tenancy For Years:  A tenancy for years, is a fixed period of time for the rental agreement, with a starting date and an ending date.  Although the tenancy is termed "years" the term could be for a week.  This tenancy automatically expires upon the ending date of the lease.  If the tenant stays on the property, or "holds over," the landlord then has the option to allow the tenant to remain or to evict at any time, as long as proper statutory notice has been given to the tenant. 
  • Periodic Tenancy:  In a periodic tenancy, there is a fixed beginning date, but no ending date.  This could be a year to year arrangement, or a month to month arrangement.  This type of tenancy can either be created expressly (in writing), or by an oral contract.  If the oral contract is for more than a year, however, then it must be in writing or it will violate the statute of frauds.  In order to end this type of tenancy, proper notice must be given.  Proper notice is the length of one term, not to exceed six months. 
  • Tenancy At Will:  The tenancy at will is created by the regular payment of rent.  In this event, there are no prescribed duties, or obligations however the court will treat this as a periodic tenancy if any issues arise between the landlord and tenant.  This tenancy only lasts as long as both parties desire, or by the creation of an invalid lease, or when the landlord sells the property to a new owner.  In the case of a new owner however, the tenancy at will is only until the new owner either makes the tenant sign a new lease, or terminates possession and evicts.  Notice is needed to terminate this agreement.  

Entering Into A Lease Agreement

While oral agreements seem friendly and informal, if you and your landlord later disagree about an issue, a written lease will clarify the agreement and minimize the conflict.

       Preventative measures that may prove helpful:

  • Keep copies of any correspondence between you and your landlord.
  • Put issues in writing and keep copies of the rental agreement. Be sure these important terms are in your residential lease (although this list is not inclusive):

               - The length of your tenancy

               - The amount of deposits and rent

               - Exiting defects, damages and repairs to the property

               - Who will pay for utilities

               - Whether you can keep pets
 
               - How much late fees will be charged

               - How much of the deposit will apply to cleaning
            
               - The extent of access the landlord will have to the property
  • Remember, if you break a lease without good cause, you are responsible for the remainder of the rent due under the lease.

  • Finally, if all else fails, see a lawyer.

Choosing The Right Lawyer

Be sure to choose someone you trust; someone who is experienced in handling landlord/tenant matters.  Platt & Westby, P.C., has been helping people with their real estate concerns for 40 years.  Contact us, or call 602-277-4441 to speak with one of our experienced real estate attorneys today.