What About Lease Agreements?
Landlord Advocacy: Legalities of the Residential Buy & Hold Business Model on Long Island.
What about lease agreements? Should you even have a lease? I have debates with colleagues of mine over whether you should even have a lease. If you don’t have a CO, you’ve got a void lease, so it’s really immaterial.
But there are benefits to not having a lease. If you don’t have a lease, then you’re just subject to the statute. There’s no term. It’s basically a month-to-month, and you can cut it off at any time. There’s lots of case law backing how these things get decided when there’s a problem.
The downside, is that you’re missing an opportunity to define the relationship. There’s all kinds of things you can put in leases, and they are mostly enforceable if they’re worded correctly, and there are a lot of terms to consider.
What are the types of things that you’d miss out if you don’t have a lease agreement? Well, number one, the identity of the parties. We just talked about what happens when you don’t know who your parties are. In a lease, they have to identify themselves. The identity of the premises.
I had a client once who rented a store, first floor of a store, he had apartments up top. In his lease, he just said, “You get the first floor.” What the lease didn’t say was that the only entrance to the basement was through that first floor, and he had all his utilities in the basement. That tenant took over the basement, and they fought him on it. And in the process of fighting him on it, the judge said, “You really didn’t say what the first floor was limited to. How the hell else are you going to get in there is through the first floor?” And so, the tenant was getting even with him, and since the utilities were down there, they would cut off the power for all his apartments upstairs, one-by-one. So, defining the premises is important.
Also, the term of the lease. Do you want to have a one year lease, two year lease, month-to-month? The term of the lease matters. If a tenant leaves early, they are liable for the rent that they should have paid for the rest of the term.
Rent amounts. You don’t necessarily need a lease for that, but you do need it for rent increases. You also need it for what’s called additional rent, which is all the extras that landlords would like to tack on. You know, if they have to do maintenance and repair, that’s a tenants responsibility, or if they have to take them to court and it costs them money. These are all things that you can add to a lease agreement.
Other things you can put in the lease agreement, is when the rent is due. Sometimes people put rent due on the 15th, sometimes people put it on the first. Usually, I recommend you leave it to the first because then it coincides with the statute, as far as the 30 day cancellation.
Also, what’s included in the rent? Is utilities included or are they not? If you have a multi-unit building, and you have utilities coming from one feeder, then you can’t make the tenant responsible for the utilities. Otherwise, you have a shared meter situation. When that happens, and you’re charging tenants for their utilities, and it’s one meter, they can come after you for treble damages, which means three times what they paid for the utilities. So, it’s bad stuff.
Other things, you could tell who does what different kinds of maintenance. Also, defaults and terminating. How do you terminate a lease? You would want to define in your lease how it gets terminated. But this is a good time to have mentioned that just because you have a lease doesn’t mean it’s going to help you because it can also hurt, and can hurt real bad.
I had a client once that came to me with Elise, and they had a five day termination clause in the lease. Sounds good. But it actually wasn’t a five day termination clause. It was a five day notice to cure clause. So basically, anytime a tenant paid late, they had to give them a five day notice, and with the opportunity to cure. If the tenant paid on the fifth day, oh well. They didn’t do it. And not only that, but it didn’t define how notices had to be given. When you don’t define how notices have to be given, they have to be served by a process server.
This tenant was wise to this somehow, and didn’t like the landlord all that much, so he paid late every month. The the landlord shelled out about $150 bucks every month to a process server to go serve a notice, and then he would get his payment on the fourth day. He dealt with this, and he also had a lease that had a term on it for a year, so he dealt with this for a year. These are the things that can happen if it’s not done right. My recommendation, of course, is to have a lease, but have it professionally done. And not only have it professionally done, have it done by someone who you would be hiring to do the eviction. That way if it does go bad, you have somebody that’s accountable if it doesn’t go the way they said it would.
Above is the full video transcript of following video:
About the Presentation by Mr. James Clark
The above is a clip from a presentation that attorney, Jim Clark made to the East Coast Real Estate Investors Association (“ECREIA”) in March, 2019 entitled: “Landlord Advocacy: The Legalities of the Residential Buy & Hold Model on Long Island.”
Mr. Clark will be leading a follow-up discussion on these topics, and specifically how they’ve changed under the New York Housing Stability & Tenant Protection Act of 2019 at the monthly meeting of ECREIA at 6:30pm on September 25, 2017 at Domenico’s Restaurant at 3270-A Hempstead, Tpke, Levittown, NY 11756. To learn more about ECREIA, click here.
In this clip, Mr. Clark discussed the importance of having a good lease agreement and some things landlords should look out for in drafting a lease agreement for a Long Island residential rental.
To view the full presentation, click here.
During this presentation, Mr. Clark discusses solutions to some of the most common legal issues landlords face including:
- How to hold title to a rental property
- How do I know if it’s a good rental property?
- Marketing Strategies For Your Rental Property
- Applications and Tenant Background Checks
- Anti-Discrimination Laws Effecting Long Island Residential Rentals
- What About Lease Agreements
- How About Security Deposits
- Collecting Rent
- What To Do When a Tenant Doesn’t Pay
- The Landlord Mindset
East Coast Real Estate Investors Association is a member group of National REIA and conducts monthly educational and networking meetings for real estate investors. To learn more about ECREIA go to http://www.eastcoastreia.net.
For more information, or if you need help with a landlord-tenant or eviction matter, please contact us.