In the context of residential leasing, at least in Kansas and Missouri, it is the norm for the landlord to prepare a lease for the tenant’s review and signature. Tenants generally do not produce lease documents for a landlord’s review and signature. (This is somewhat distinct from the commercial lease environment.) Who should be the drafter of the document on behalf of the landlord, and who should be reviewing the document on behalf of the tenant?
Most people understand that oral leases are generally not good practice in real estate and do not have a problem with making a lease in written form. In the context of commercial leases, where there might be more “sophistication” between or among the parties, it is generally understood that a written lease agreement is a highly important document and merits close attention; however, in the context of residential leases, at least in some instances, there appears to be less attention paid. This may be a serious mistake. Attorneys can and should be involved with residential lease transactions. For the landlord, the real estate being leased is likely a significant asset. It could be worth a few hundred thousand dollars or even a few million. For the tenant, the financial commitment the lease represents, as well as what he or she could expect out of the landlord or property management company throughout the term of the lease, is of utmost importance. Attorneys can be used by landlords for the preparation of the lease document and by tenants in the review of a lease document (but not the same attorney by both parties simultaneously).
Besides attorneys, landlords, and tenants, there are other professionals who work in real estate. There are appraisers, property managers, real estate agents, escrow agents, real estate brokers, lenders, residential real estate contractors, surveyors, inspectors, etc. The list goes on! As it relates to the narrow issue of drafting a residential real estate contract or reviewing a residential real estate contract, the correct professional to utilize is the real estate attorney. That is not to say the other, above-mentioned professionals cannot add value. In the context of a residential real estate lease, from both a landlord’s and a tenant’s perspective, there is value to knowing a rental property’s fair rental value and its physical condition (among other things), areas not necessarily within the expertise of a real estate lawyer.
As it relates to drafting a residential lease contract for a landlord, or reviewing a residential lease contract for a tenant, here are some of the important topics to be aware of:
- Who the parties are, i.e., the exact names of the tenant(s) and the landlord
- Where the real property is located, i.e., its address and whether access is provided to the entirety of the real estate or some lesser amount
- The duration of the lease (usually expressed in months and/or years)
- The amount of rent per month and when it is due
- Who is responsible for utilities, and what utilities might be paid for by another party (such as a homeowner’s association)
- Assignment and subletting, whether permitted and under what conditions
- Insurance requirements
- Governing law, i.e., what state’s laws apply
- Repairs, maintenance, and service charges
Each of these topics is important and needs to be carefully understood and worded within the residential lease agreement. All of them often show up (or perhaps should show up) within a single lease document, making the document anywhere from a few pages to around 20 or more. This law firm typically does not draft or review residential lease agreements in excess of 20 pages, but those documents certainly do exist, notably in the case of condominium complexes.
Are certain terms and conditions prohibited in residential lease agreements? Depending on the jurisdiction, the answer may be yes. For example, Kansas law prohibits a number of items in residential lease agreements (a/k/a “rental agreements”), including agreements to pay either party’s attorneys’ fees or to waive or forego rights or remedies under the Kansas Residential Landlord and Tenant Act. Kan. Stat. Ann. § 58-2547. Some forms readily available on the internet may not appropriately take state law into account.
This law firm has experience with reviewing residential leases on behalf of tenants and preparing residential leases on behalf of landlords in the states of Kansas and Missouri. We have reviewed or prepared leases for single family residences, condominiums, townhomes, and duplexes.
If you are a landlord or a tenant and would like to make an appointment with Kincaid Business & Entrepreneurial Law, LLC ® regarding a real estate law matter in connection with a (1) residential lease agreement, (2) residential lease extension, (3) residential lease amendment, (4) residential lease renewal, or (5) residential lease termination, please feel free to conveniently schedule with us here. You may also wish to read more about Kansas residential lease agreements on our blog.