AgentRentals

Breaking lease over disruptive property showings

Future-Proof: Navigate Threats, Seize Opportunities at ICNY 2018 | Jan 22-26 at the Marriott Marquis, Times Square, New York

Q: The owners of the house we rent told us they’ll be selling the property even though we have a year left on the lease. I have a medical problem and need quiet so that I can rest. But showing the house is going to be disruptive. Can we stop it? Actually, we want to get out now — do we have grounds to break the lease? –Mary F.

A: Most states have laws governing when, for what reason, and with how much notice a landlord may enter a tenant’s home. Entry to show the property to prospective buyers is always on the list of permitted reasons. As a general rule, as much as you might not like it, if your landlord is planning on following your state’s access rules, there’s not much you can do.

But wait. Your condition may qualify you as a person with a disability as that term is understood by the Fair Housing Amendments Act. Do you have a physical or mental condition that substantially limits one or more major life activities? If so, the owners are legally bound to adjust their business practices — including showing a home to potential buyers — so that you can live safely and comfortably in your rented home. This accommodation should mean at the minimum a willingness to work with you to minimize the disruptions caused by showing the property.

You may also be entitled to leave the rental without responsibility for future rent, i.e., to legally break the lease. That’s because, if you’re legally disabled, you can expect the landlord to accommodate a reasonable request that he vary his policy of holding you to the terms of the lease — specifically, its end date. Ironically, allowing you to "safely and comfortably live in the rental" requires, in this instance, letting you leave. The variation, called an accommodation, would be to allow you to terminate your lease without financial liability.

Q: I rent out a small commercial space, and questions have arisen as to who has responsibility to replace fluorescent light tubes, maintain toilets in working order, and replace high-efficiency filters in the heating/air conditioning system. We have a standard written lease but it doesn’t get down to that level of detail. Can you suggest who is responsible? –Bob D.

A: To be blunt, the person responsible for this problem is the one who chose the "standard written lease," which was undoubtedly you. This lease, which you probably purchased online for a few bucks, was woefully inadequate. Doubtless full of legalese, it skipped the part about everyday repairs and maintenance, and probably more issues, too.

3 essential tools that will 10X your real estate marketing
Smart landing pages, a synchronized database and automation generate results READ MORE

Now you find yourself with no guidance, and it’s unlikely you’ll find it in the law. Were this a residential rental, you could look to your state’s laws on upkeep and habitability, and would probably learn that landlords are responsible for upkeep that’s necessary to keep the rental safe and habitable. Tenants normally perform minor upkeep (light bulbs, minor plumbing, and filters). But in a commercial rental, it’s up for grabs. That’s because legislators have decided that when the transaction is "B2B" (between businesses), the parties are likely to have equal bargaining strength and sophistication, and should be allowed to craft their own deal.

By contrast, residential renting often involves a substantial imbalance of power and sophistication, and concerns a basic and important human need (housing). So, legislators decide who does what; the law is less likely to set the ground rules when the fight is over the look of a shop or the cost to fix a company’s sign.

You and your tenant will just have to work it out. Next time, look for a more robust lease, or consult either a good self-help legal resource or a lawyer. Heed the real estate lawyer’s mantra: The best lease is one that leaves you with no surprises.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at janet@inman.com.

Contact Janet Portman:
Email Email Letter to the Editor Letter to the Editor