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Five Key Provisions Every Tenant Needs in a Residential Lease
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Five Key Provisions Every Tenant Needs in a Residential Lease

July 7, 2022 Real Estate Development, Sales and Leasing Industry Legal Blog

Reading Time: 6 minutes


Far too often, I’m approached by tenants who have an issue with a residential lease that they have already signed and agreed to but have come to find out is full of problems and missing key information. Like any contract, once a lease is signed, there’s not much a tenant can do about the terms. That is why I strongly advise having an attorney review any lease before it’s signed. However, given how busy and competitive the rental market is these days, not everyone has the chance to wait on an attorney to review the terms and provide an opinion. Considering that, I’ve prepared this article to highlight key provisions that all residential tenants should be aware of before signing a new lease.

Lease Terms and Extensions

It seems obvious, but a lease should clearly define the entire term of the lease—from the commencement date (the day the tenant takes occupancy) through the termination date (the final day of the lease)—to avoid any misinterpretation by either the landlord or the tenant of when the lease begins and ends. Occasionally, I see leases drafted that do not provide for a set termination date. This can often lead to confusion about when the tenant is supposed to vacate, potentially leading to the landlord claiming default rent from the tenant. A definite termination date provides clarification for both the landlord and the tenant of when the lease ends.  It also allows the tenant to deliver any notices of intent to renew or not renew the lease on time with the landlord.

Given the demand for rental property in the current market, tenants should also seek to have a right or option to extend the lease built within the terms. Specifically, the lease can be set up where the tenant has the right to exercise an option to extend the lease so long as the option is exercised by the tenant no later than 60 days prior to the lease termination date. Occasionally, the landlord may include an increase in the rent if the option is exercised by the tenant, but this can save a good bit of hassle for both parties. The landlord knows he/she has stable income, and the tenant knows he/she does not have to find a new place, move, and put down a new security deposit.

Maintenance Responsibilities

The Florida Landlord Tenant Act (Chapter 83 Florida Statutes) provides maintenance responsibilities on behalf of the landlord and tenant, but these are not customized for every lease and every property.  Therefore, every lease should clearly explain which party is responsible for specific maintenance and repair issues which may arise during the course of the lease.  It is almost inevitable that an appliance will go on the fritz, a window will break, or something else will occur requiring either the landlord or the tenant to pay for the repair.  The lease should clearly define who is responsible for which repairs, as well as a procedure for notifying the landlord in the event a repair is needed.  Typically, the landlord will be responsible for all repairs to major appliances so long as the damage is not a direct result of the tenant’s negligence or willful misuse of the appliance.  That said, if the lease is silent on this point, the tenant could be forced to pay a substantial amount of money on repairs for items they did not intentionally damage and do not own.

Late Fees and Default

Landlords do have the right to assess late fees if rent is not received within a certain time after its due date each month.  Each lease will vary, but landlords generally provide a 5 – 10 day grace period until rent is considered late.  Once the grace period has expired and the rent remains unpaid, a late fee will be assed on top of the rent owed.  Tenants want to make sure that the late fee is no greater than approximately five percent (5%) of the total monthly rent payment, which is fairly standard throughout Florida.  Please note, however, that if three (3) days pass after the grace period has expired and rent is not paid, the landlord has the right to immediately terminate the lease.  As such, your lease should be clear as to when rent is due and how long you can wait to pay the rent after the due date until a late fee is assessed.

Early Termination; Buyout Clause

Unless a tenant is on active-duty military status, the landlord has no requirement to terminate the lease early, if requested by the tenant.  However, circumstances change causing tenants to have to move.  As such, it’s in a tenant’s best interest to request that an early termination fee or buyout clause be included within the lease.  Such a provision allows for the landlord to charge no more than sixty days (or two month’s) rent should the tenant need to move out early.  Otherwise, a landlord can continue to hold the tenant liable for all the rent due throughout the remainder of the lease, no matter if the tenant moves out.  Of course, the Landlord Tenant Act requires every landlord to attempt to mitigate its damages if a tenant moves out early by trying to relet the premises, but there’s no guarantee that the landlord will find a new tenant in a timely fashion.  Thus, the tenant will have peace of mind knowing that the lease can be terminated early for a certain fee.

Security Deposit

Security deposits are most commonly collected by landlords upon the commencement of a lease to account for any damages to the property and are governed by Chapter 83.49 Florida Statutes.  Security deposits are typically a total of one month’s rent, which is collected and held in a separate account by the landlord and not commingled with the rent.  It is important for tenants to understand that, upon the termination of the lease, a landlord has a legal requirement to either (i) return the security deposit to the tenant within fifteen days, or (ii) notify the tenant within thirty days of the landlord’s intention to use some or all of the security deposit to pay for damages to the premises caused by the tenant.  If the landlord fails to notice the tenant of its intention to make a claim on the security deposit, then per Ch. 83.49, the landlord forfeits any right it has to the security deposit.  For the sake of clarity, a copy of this chapter of the Florida Landlord Tenant Act should be attached to the lease.

Conclusion

Residential leases may seem commonplace, and tenants may often neglect to review them prior to signing, especially if there are several applicants for one property.  However, all leases should be reviewed in detail prior to signing.  If any questions arise throughout the review process, we strongly recommend that you contact an attorney familiar with landlord tenant law to guide you through the lease.

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