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What is a Lease?
A lease is a contract between the landlord and the tenant. Once entered into, a lease contract binds both parties to perform the promises contained in the lease and gives rise to a claim for damages in the event one party breaches its duties to the other. Since you can wind up owing a landlord literally thousands of dollars if you default in rent payments, it is vital to be as knowledgeable as you can about the process before you sign a lease.
I. Consider the following before you sign a lease:
First, if a deposit of any sort is required, in conjunction with your lease application, clarify in writing whether the applicable deposit is refundable if you decide not to take the apartment. Don't be afraid to negotiate for the refundability of your application deposit.
Second, never sign a lease without reading it. Because a lease is usually full of legal terminology, you should ask for a copy of the lease so you can read it over carefully and understand its terms, objecting to and/or negotiating with the landlord on matters that concern you. Failure to read the lease or understand or bargain over its contents, will not relieve you of your obligations under the lease.
The staff of Students' Legal Assistance may be available to the students on short notice to review your lease with you before you sign it. Just call.
Third, the cardinal rule to follow in signing any contract, and particularly so with respect to leases, is that any promises made by the landlord or his manager which you are relying on in signing the contract must be written into the contract - before you sign it. Do not rely on the landlord's oral promise that you will have new carpeting, that the apartment will be cleaned when you take possession, or that you can leave early if you are student teaching or need to relocate for work. Oral promises are too often empty promises unmet or later reneged and difficult (if not impossible) to prove in court. If the promised performance is important to you, get it in writing.
Fourth, negotiate with the landlord. It is typical for a landlord to present his contract as a 'take it or leave it' proposition, but a surprising number of landlords will discuss changes in their pre-printed lease; all of them will if they believe the apartment is going to go unrented. There is strength in numbers - the more NIU students insist on negotiating with DeKalb landlords, the sooner landlords will come to accept that negotiating is part of the rental process.
II. What to negotiate? A short list would include the following:
- Rent. Why not? Better to get a rent term you know you and your roommates can handle than to sign a lease hoping to find an extra (possibly illegal) roommate so you can cover your expenses.
- Terms of the Lease. If several of you are graduating in May or know you will not be living in DeKalb over the summer, try to negotiate for a 9-month lease. Even if you will have to pay a somewhat higher rent per month, your savings can be substantial. You should also insist on a reduction in rent for the last month of your lease if the lease requires you to leave early (typically 7 to 10 days) so that the landlord can prepare the apartment for the next tenant.
- Early Termination. Push for a clause that allows early termination of the lease or modification of the rental terms if a roommate leaves for good cause, i.e., flunking out of school, becoming ill, etc.
- Rent Responsibility. Provide that each tenant shall be responsible only for his or her share of rent rather than being "jointly and severally liable" for the rent. This is particularly appropriate when the landlord mixes and matches you with other persons you do not know.
- Prepaid Rent. Negotiate about eliminating or modifying prepaid rent requirements and insist on being paid interest on your prepaid rent.
- Noise. Insist on a clause that makes the landlord responsible to you for enforcing anti-noise and disturbance provisions which he has included in other tenants' leases. Too often landlords take a 'hands off' attitude when residents of one apartment are disturbing others.
- Insurance. Insist that a clause be inserted which provides that as a rent-paying tenant you are regarded as a co-insured under the landlord's property insurance. In this way, you cannot be held liable in the event of an accidental loss such as a fire.
Negotiating will make you more aware of the lease and your obligations. It may also improve your position.
III. Lease provisions that are unenforceable:
Some provisions commonly found in leases are prohibited by DeKalb city ordinance. If such a provision is in your lease, that provision is void and unenforceable. To avoid any future conflicts, however, you should have prohibited terms stricken or modified before you sign the lease. Section 10.11 of the DeKalb Municipal Code prohibits the following lease terms:
- waiver of rights, obligations or remedies contained in DeKalb Landlord/Tenant Ordinance.
- waiver of statutory rights provided under state and federal laws.
- confession of judgment - a provision that allows the landlord to enter a judgment against tenant without a court hearing/proceeding of any kind. A judgment is a court order that entitles one party in a legal dispute to a remedy from the other party.
- unilateral attorney fees - a provision that entitles a landlord to have his/her attorney fees paid by tenant any time there is a dispute involving the lease agreement. However, a clause that awards attorney's fees to the prevailing party in a legal dispute is allowed.
- prohibiting sublease agreements - a landlord can only reject potential sublessees for legitimate business reasons or in accordance with a standard screening process. The landlord does have a right to know you are intending to sublet and to whom you are intending to sublet to so the landlord can determine if the sublessee is acceptable.
- automatic renewal of lease unless specifically initialed by both parties.
- waiver of warranty of habitability of premises - a provision in which the tenant surrenders his/her right to receive a rental unit that is fit for living and complies with the DeKalb Property Maintenance Code.
IV. Remedies to prohibited terms
A landlord who includes any of the above prohibited terms in a lease after receiving notice, or attempts to enforce one of the prohibited terms shall be liable for an amount equal to one (1) month's rent in addition to compensatory damages sustained including court costs and reasonable attorney fees.
V. Additional provisions that are void or unenforceable under Illinois law include:
WAIVER/TORT LIABILITY - One of the things this clause does attempts to relieve the landlord from any liability for damages or injuries to persons or property, even if the damages or injuries to persons or property are due to his neglect. Illinois law states that such laws, to the extent that they attempt to shelter the landlord from liability as a result of his own negligence, are void and unenforceable as against public policy (Lessor's Liability Act 765 ILCS 705/1).
WAIVER OF JURY TRIAL - An Illinois statute provides a right of a jury trial in eviction proceedings notwithstanding a lease waiver (735 ILCS 5/9-108).
Again, if you have any questions about a lease, and you are an NIU student, please call Students' Legal Assistance at 815-753-1701 to schedule an appointment. Leases can be confusing and convoluted. Students' Legal Assistance can review a lease for you and explain its terms and provisions.
VI. Other questions or concerns about your lease
Sometimes problems arise after you have already signed a lease. For example, you may want to break the lease to move back home or into another apartment, or your landlord may commence eviction proceedings against you to force you to move out. These are problems that can carry serious consequences if not acted upon swiftly and properly. Therefore, it is advisable to seek immediate legal assistance at our office.