Q: I’m about to move into an apartment in the middle of the month. The first month’s rent payment my landlord is asking for consists of the prorated rent for the current month, plus the entire month’s rent for the next, first full month. Is this legal? –Drew W.
A: It’s probably legal for your landlord to specify a larger-than-normal rent for your first payment. The reason landlords tack the prorated rent onto the first full month’s rent is their fear that a tenant who may be able to come up with half of the rent on moving in may not be able to come up with the full month’s rent when it falls due on the regular due date.
Unfortunately, these fears might come true if they fail to screen out tenants who do not have the income to pay the stated rent.
Some unlucky landlords even end up renting to tenants who never intended to pay more than the small prorated rent. These scammers plan to follow the "possession is nine-tenths of the law" approach once they get in the door, by remaining on the property as long as possible and forcing the landlord to resort to eviction procedures to get them out.
Their real hope is that the landlord will end up paying them to leave, at which point they’ll begin the whole process again, hoping to take advantage of another unsuspecting landlord at another rental.
The key to avoiding tenants like either one of these is thorough screening, of course. Once the landlord has satisfied herself that the tenant has a solid track record of paying the rent and following the rules, as shown by phone conversations with past landlords and current employers, a credit check, and possibly a background check, her fears that the tenant will not be able to pay the full rent when it comes due should abate.
It’s important for landlords to remember that for some tenants (the ones landlords have checked out and do want to rent to), a first rental payment that is substantially higher than the normal rent could be a hardship.
For example, let’s say the rent is $2,500 and a new tenant will move in on the 10th of the month. The first rent payment would be the prorated portion (two-thirds of $2,500, or $1,650) plus the next full month’s rent ($2,500), for a total of $4,150. Now suppose the deposit is twice the monthly rent, or $5,000. This tenant must put down $9,150!
That’s a lot of money, especially if the tenant hasn’t yet gotten back the security deposit from the previous rental (most states give landlords two to three weeks to itemize and return it; some require that they return it within a "reasonable time" only).
Requiring this tenant to come up with the first full month’s rent right away might make the rental prohibitively expensive.
If paying the prorated rent plus the first full month’s rent up front is a hardship for you, discuss it with the landlord. One compromise is to offer to pay a full month’s rent up front (in our example above, that would be from the 10th of the current month to the 10th of the following month), pay the prorated 20 days on the 10th of the following month, and then start a regular schedule of paying the full month’s rent on the first of every month thereafter.
That way, the pro-rated rent is due later than it would have been under the landlord’s proposal, which gives you a chance to use your returned security deposit. It should also satisfy the landlord that you can, in fact, come up with a full month’s rent, as that will be your first rent payment.
If you propose this compromise, also remind the landlord that her pre-rental screening gives her no reason to think she’s dealing with someone who can’t or won’t pay the full monthly rent. If you have solid references and a good rental history, hopefully she’ll relax and meet you half way.
Q: I rented my home for one year and then stayed on, paying rent, with the landlord’s consent. A clause in the original lease provided that if I did so, "tenant will become a month-to-month tenant, and landlord reserves the right to raise the rent 5 percent (to $1,800) for the first year, and an additional 5 percent for the second year ($1,890)."
After three months as a month-to-month tenant, I received a rent hike that’s way more than 5 percent. My landlord says that he can do this because "you’re only month-to-month." Who’s right? –Emily D.
A: The lease clause you describe is a model of confusion. On the one hand, it provides that a tenant whose lease expires, who remains with the consent of the landlord, becomes a month-to-month tenant. That’s sensible and is the law in most states anyway. But the landlord has gone further, and provided that this month-to-month tenant will enjoy a specified rent for the first 12 months that she stays in the rental, and a different rent for the next 12 months.
Trouble is, having a set rent is one of the hallmarks of a fixed-term rental, also known as a lease. If you understood it like this, it’s no wonder that you’re mystified at the landlord’s claim that he can raise the rent beyond 5 percent during that first year.
The legal question is whether the landlord’s agreement not to raise the rent on a month-to-month tenancy by more than a specified amount suggests that he intended a lease. In other words, did that promise somehow convert the monthly tenancy into a year’s lease? I doubt a judge would go that far.
And if there’s no lease, the judge would hardly be in a position to say that the landlord could not exercise a right that all landlords in month-to-month situations have: the right to terminate the arrangement on proper notice, for any reason that’s not discriminatory or retaliatory.
This means your landlord might be able to accomplish his goal of raising the rent by giving you not a rent-hike notice, but a termination notice. It would work this way: You’d receive the notice, decide not to move, and at the end of the notice period, your landlord would either file eviction papers or offer you a new month-to-month tenancy, but only at the higher rent.
To be sure, this maneuver is a tricky sleight of hand. And for that reason, a judge who saw the practical consequences of his ruling might be bothered by it. You might find a judge who is unwilling to let a landlord benefit from his own sloppy lease-writing. Certainly, a judge who felt that the confusion was a deliberate ploy might be even less inclined to rule in the landlord’s favor.
If you refuse to pay the increase and refuse to move, you’ll be risking an eviction lawsuit, which is no light matter. If you go ahead and mount a defense, point out that an age-old legal rule requires that a confusing contract clause be interpreted against the interests of the party that wrote it (in this case, your landlord).
This rule makes perfect sense — if you undertake to write a legal document and mess it up, you pay the consequences. The rule has even more punch if the writer is a business or a professional (like a landlord) and the other side is not a business, but a consumer (like a tenant).
