ABA Family Legal Guide

Renting Residential Property

Renting Basics

Leases

Does the law regulate the provisions in a lease?

Yes. Courts have restricted what provisions can be enforced in a lease. Some of the most objectionable clauses in leases are now illegal. For example, most state courts have struck down lease clauses that 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 (for a further discussion, see page 213). 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 lawyer to go into any court and to represent the tenant without any prior notice, service or process. The lawyer, on the tenant's behalf, 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.