Landlord / Tenant FAQs | Legal Form Articles

What is a lease?

A lease is an arrangement by which a lessor agrees to grant a lessee the possession and use of a particular piece of property for a specified period of time. The Lease Agreement between lessor and lessee will contain the terms of this arrangement, including the amount of rent and/or security deposit to be paid by the lessee, a description of the property being leased, the duration of the lease period, and the rights of the lessee to assign the lease or to sublease the property.

Is it mandatory for rent to be due on the first of each month?

Although rent is usually due monthly on the first of each month, it is within the landlord/lessor’s rights to establish a different period and/or due date for rent payments. The terms of rental payments (amount due, date due, etc.) should be spelled out clearly in the Lease Agreement.

Are there any restrictions on the amount of rent a landlord can charge?

Within certain communities, there are limits and specific restrictions placed upon the amount of rent that can be charged to tenants. California, New York and New Jersey are a few of the states that contain rent-controlled communities. The District of Columbia also has some communities with rent control ordinances in effect.

If you are living in a rent-controlled community (or if you are not sure if your community is rent controlled) you should contact your local housing authority to determine how these rules may affect you.

Why do I have to pay a security deposit to my landlord?

A security deposit is an amount of money paid by the lessee (tenant) to the lessor (landlord) guaranteeing performance of the lease by the tenant. In most cases, the security deposit is due at the time the Lease Agreement is executed. The landlord holds the security deposit for the duration of the lease to insure against the tenant defaulting under the terms of the Lease Agreement, or otherwise damaging the leased property. A normal amount of “wear and tear” does not constitute damage for which the tenant would be financially responsible, but if there is significant damage done to the leased property, the landlord can withhold all or a portion of the security deposit to pay to repair such damage. Further, if the tenant has outstanding financial obligations to the landlord at the expiration of the lease (i.e., unpaid rent), the landlord can usually recoup that debt out of the tenant’s security deposit.

How long does a landlord have to return a security deposit?

Residential security deposits are strictly regulated at the state level. Each state has placed a limit on the amount of time a residential landlord has after the expiration of the lease to return the tenant’s security deposit. In a majority of states, this duration is between one and three months. (These limitations do not apply to security deposits under commercial leases. See “How do residential leases differ from commercial leases?” for more information.)

For a list of state limits on the amount of time a landlord has to return a security deposit, please see the State Security Deposit Rules Table, in our Landlord Tenant Law Guide.

A Tenant can use a Security Deposit Demand Letter to ask for the deposit back from the Landlord.

Are there limits to the amount a tenant can be charged for a security deposit?

Many states have imposed limits on the amount that a landlord can require a residential tenant to pay as a security deposit. In most cases, these limits are calculated as some multiple of the monthly rental amount. For example, in California, security deposits are limited to two times the monthly rental payment. (Rent control ordinances apply only to residential leases, and not to commercial ones. See “How do residential leases differ from commercial leases?” for more information.)

For a complete listing of state limits on security deposit amounts, please see the State Security Deposit Rules table, in our Landlord Tenant Law Guide.

Is a tenant permitted to transfer a lease to a third party?

There are generally two ways that a tenant/lessee can transfer his interest in the Lease Agreement to a third party: sublease and assignment. In both cases, the original tenant grants a third party the right to possess and use the leased property, enjoying the same rights under the Lease Agreement that the original tenant did. In both cases, however, the landlord may have to give consent before the transfer can be carried out.

A sublease grants a third party the same rights to occupy and use the leased property that were enjoyed by the original lessee. However, the original lessee remains ultimately accountable to the landlord under the original terms of the lease. The original lessee is no longer entitled to use the premises, but is liable for failure to pay rental payments, damage to the premises, or other default conditions.

A Lease Assignment is a complete transfer of the Lease Agreement to a third party. Once an assignment is made, the original lessee is absolved of all responsibility under the lease, and the third party becomes directly accountable to the landlord under the terms of the Lease Agreement.

In many cases, Lease Agreements will require the original tenant to obtain a Landlord Consent to Sublease or a Landlord Consent to Assignment before any such transfer can be made. In the absence of any provision in the lease requiring landlord consent to a sublease or assignment, state law will govern. In most states, landlord consent to sublease is less likely to be mandatory by law then is landlord consent to assignment. The reason for this difference is that under a sublease, the original parties (landlord and original lessee) continue to be held accountable under the lease agreement. When an assignment is made, this is not the case.

What happens if I want to extend my lease past its expiration?

At the end of the stated Lease Term, the landlord and tenant may wish to extend their relationship without entering into a new Lease Agreement. This can be accomplished through the use of a Lease Extension Agreement. In some cases, the existing Lease Agreement may contain provisions for lease extension. Such provisions generally require that the tenant give the landlord some form of prior written notice to the landlord requesting the extension. In other cases, the original Lease Agreement may provide for an automatic renewal of the lease unless one of the parties elects to terminate the lease.

What happens if a tenant fails to pay rent?

A failure to make a rental payment generally constitutes a default under the terms of the lease. Some Lease Agreements may provide for a grace period after the due date, and many landlords will afford tenants a reasonable amount of latitude in accepting rent payments after the due date. Technically, however, since the failure to pay rent constitutes a default, it may give the landlord the right to terminate the lease and begin eviction proceedings.

If any other term or condition of the lease is broken by one of the parties, it may also constitute a default. Generally, the default would have to be considered to be a significant, material breach of the Lease in order to give the non-breaching party the right to terminate.

How do residential leases differ from commercial leases?

While the basic principles of the landlord-tenant relationship are the same in both the residential and commercial contexts, there are a few differences between the two. These differences generally stem from the legal assumption that parties to a commercial lease are sophisticated, experienced parties with equal bargaining power, while residential tenants may be more likely to be unsophisticated, and more in need of protection from unscrupulous landlords.

Thus, residential tenants are protected by a number of state consumer protection laws and regulations, whereas commercial tenants are generally not covered by those laws. Limits on security deposit amounts and return times, for example, are applicable in the residential context only, and not to commercial tenants.

Are there laws prohibiting landlords from discriminating against tenants?

There are a number of state and federal laws prohibiting discriminatory practices in renting and leasing property to tenants. One of the more important federal pieces of legislation covering housing discrimination is the Fair Housing Act.

The Fair Housing Act covers most housing. In some circumstances, the Act exempts owner-occupied buildings with no more than four units, single-family housing sold or rented without the use of a broker, and housing operated by organizations and private clubs that limit occupancy to members.

The Act states that no one may take any of the following actions based on race, color, national origin, religion, sex, familial status or handicap:

Refuse to rent or sell housing
Refuse to negotiate for housing
Make housing unavailable
Deny a dwelling
Set different terms, conditions or privileges for sale or rental of a dwelling
Provide different housing services or facilities
Falsely deny that housing is available for inspection, sale, or rental
For profit, persuade owners to sell or rent (blockbusting) or
Deny anyone access to or membership in a facility or service (such as a multiple listing service) related to the sale or rental of housing.

For more detailed information on Fair Housing Act restrictions and guidelines, please see the Fair Housing Act page on the Department of Housing and Urban Development’s website. You can also find information on state fair housing laws through the Housing Department’s website.

The following form categories found in our Landlord and Tenant Forms section relate to the topics of this article:

Lease Form Combo Packages – Combo packages containing the forms landlords most often use. These are some of our most popular forms

Residential Lease Agreements – Various Residential Lease Agreements for use in all states, including apartment and house leases, subleases, month to month leases and more. These are some of our most popular forms.

Residential Rental Applications – Residential Rental Applications for use in all states. Know your tenant before you rent your property to them. This easy and convenient form allows a Landlord to obtain information from a prospective Tenant to help the Landlord with the Tenant screening process.

Move-In and Move-Out Inspection Checklist – Residential Premises Move-In and Move-Out Inspection Checklist for use in all states.

Commercial Lease Agreement – Commercial Lease Agreement for use in all states.

Please note that portions of the text of this guide have been reproduced from the website of the U.S. Department of Housing and Urban Development

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