The Real.Est List
The 5 biggest unenforceable lease provisions
It is a fact of New York City rental life that landlords typically won’t negotiate leases beyond (sometimes) the amount of monthly rent. But don’t assume that just because your landlord insists on some crazy lease provision that he or she can hold you to it.
“There may be very significant portions of a residential lease--whether it be a proprietary lease for a coop or a rental--that are either completely unenforceable by the landlord or that with a little help from the tenant may be unenforceable,” says Manhattan real estate attorney Steven Wagner of Porzio, Bromberg & Newman.
“In fact, tenants’ rights have made such progress over the decades that there is even a provision of the law that says that a court may refuse to enforce any provision of a lease that is unconscionable," he says.
(FYI, on the flip side, there may be things that are not written in the lease that you, as the tenant, are entitled to receive –like heat, hot water, locks on the doors, smoke and carbon monoxide detectors.)
Here are the Big 5 unenforceable provisions:
1. Only you and your immediate family may occupy the apartment
A lease that limits you to just having the named tenant and your immediate family violates what is affectionately known as the “Live-In Lover Law” (a.k.a. Real Property Law Section 235-f.), says Wagner.
The Live-In Lover Law allows a tenant to have an “additional occupant” and that additional occupant’s immediate family to move in without violating the lease.
You don’t have to be lovers--in fact, says Wagner, “You don’t even have to like the person." However, you do need to notify your landlord within a certain amount of time.
“You must let the landlord know of the additional occupant within 30 days after the commencement of the occupancy or within 30 days of the request by the landlord the name of the person who is moving in with you,” says Wagner. You or at least one member of your immediate family must use the apartment as a primary residence, says Wagner, "but any attempt by the landlord to impose a greater restriction on occupancy or to have you waive this provision is void as against public policy.”
2. You can’t sublet
In buildings with four or more apartments, a landlord can’t unreasonably refuse your request to sublet (see Real Property Law Section 226-f).
“This one is a little tricky because you have to follow the rules in order to enforce your sublet rights,” explains Wagner. “You have to send your landlord a request for the sublease by certified mail, return receipt requested.”
The request must include the date that the sublease will start and end, the name of the proposed subtenant, the permanent business and home addresses of the subtenant, your reason for subletting, your address during the term of the sublease, the consent of any guarantor, and a copy of the proposed sublease and a copy of your lease (if available) with an acknowledgement that the sublease is a true copy.
The landlord may ask for additional financial and background information within ten days. But he or she can’t go on a fishing expedition.
“Some landlords try to use this to find out all kinds of information unrelated to the sublease because they don’t want to approve the sublets and they try to make things difficult and/or they are probing to figure out some other way to evict you and get rid of a rent regulated lease,” says Wagner. “That’s not reasonable and will not be permitted by the courts.”
The landlord has to let you know whether your request to sublet is approved within 30 days after your request or within 30 days after you have submitted the additional information.
If you don't get an answer within 30 days, the sublet is approved. Also, if the landlord says no, he must give you a reasonable explanation for not allowing the sublet.
Key takeaway: “If the landlord just says ‘no’ to your sublet request, you may sublet because no reason was given and that’s unreasonable,” says Wagner. “In other words, ‘no’ means ‘yes.’”
3. You can’t have a pet
It’s not that this is unenforceable on its face—just that there are two big exceptions.
If you need your pet as an “emotional support pet” you can keep it despite a no-pet clause in your lease. A letter from your shrink is required.
Then there’s the “open and notorious” exception. Under New York City law (Sec. 27-2009.1 of the Housing Maintenance Code), if you live in a building with three or more apartments and you keep a pet “openly and notoriously” for 3 months without the landlord starting a lawsuit against you, you can keep the pet.
“Keep in mind that the three month period does not start from the date you get Fido, but from the date that the landlord discovers Fido or should have discovered Fido because that’s the date, presumably, that you had your dog in the apartment openly and notoriously,” says Wagner.
The landlord will probably claim that you were hiding the dog and that he didn’t know about it until a date that is within three months from the date that you get sued, notes Wagner, so it’s a good idea to make sure you have records of when you got your dog and register it with the city using your address.
“A Christmas card to the super and the landlord with a picture of you and Fido in the apartment is always a nice touch,” says Wagner. “I also suggest that you get a ‘certificate of mailing’ from the post office for the card to prove that you mailed the cards to them.”
If your dog becomes a nuisance, though, the landlord can get rid of him, as the pet law only protects good dogs.
4. You will be fined $250 a day if you sublet without approval
Clauses permitting fines are rare except with proprietary leases in coops, says Wagner. Other examples: Cumulative late fees ($100 for first month, $200 for second month, $400 third month, $800 fourth month, $1,600 fifth month, etc.), or $250 per incident for failure to clean up after your dog.
If a fine exceeds an amount reasonably related to the damages suffered by the landlord, the fine will be considered a penalty and will not be collectable, says Wagner. Where rent stabilized leases and rent controlled apartments are concerned, a landlord cannot collect fines without being deemed to be overcharging a tenant.
(Note: The landlord cannot fine you at all unless there is a clause in the lease permitting fines.)
If a landlord tries to impose a fine and you disagree with the charge, you can refuse to pay it and let the landlord challenge you in court or you can pay it under protest and take the landlord to small claims court to recover the fine.
“Make sure you itemize what is being paid in the memo area of the check on the lower left hand corner,” says Wagner. “Write ‘Paid under protest’ on the back of the check above where the landlord would endorse it.”
5. You are required to pay the landlord’s legal expenses arising from litigation or if you breach the lease
Actually, says Wagner, to recover attorney fees, the landlord must “substantially prevail” in housing court on whatever it is you’re litigating about, whether it be non payment of rent, a dog or a washing machine.
“Even then, the fees must be reasonable and the landlord cannot collect fees for legal expenses to collect legal fees,” says Wagner.
Even better, if you prevail in litigation, the landlord may actually have to pay your expenses.