Is this lease unreasonable, or am I unreasonable?

[laughaise]

 Edited to say the lease was unreasonable

[Cathy]

It's safe to say that this proposed agreement is unreasonable, but it sounds like you already know that. The attorney's fee provision is completely oppressive by itself because, based on your post, it allows the landlord to charge you an unlimited amount of money just because they feel like it. It would not be wise to agree to such a proposition unless you have a very compelling argument that that provision is invalid (and you are confident a Court would accept that argument). Note: I am not expressing any opinion or advice on whether such an argument exists.

I'm not going to do the research for you right now, but I suggest you research any legal theories that might allow you to recover the $850 you paid. Did you sign any specific written agreement governing that $850? If so, the following argument will be harder, but you could still possibly argue that the agreement governing the $850 contained a covenant providing that the form of lease agreement would be reasonable in the sense of being broadly similar to leases commonly used in the local rental market. If there was no written agreement governing the $850, that argument will be a lot easier to win with, but even if there is a written agreement, you can still argue that such a covenant was necessarily implied; after all, it's basically a scam to collect $850 application fees followed by presenting a ridiculously unreasonable lease that no one will ever agree to, allowing them to collect $850 fees repeatedly.

Again, I have not done any research of Missouri law, and this post is not advice, just suggestions on things to research.

[ioseftavi]

I'm in NYC where we have some crazy landlords indeed, but that lease seems incredibly onerous.  I'd strongly consider walking on that apartment.

You may also want to private message NoNonsenseLandlord.  His blog is excellent and he takes the business of landlording very seriously - both as far as making sure that he, as a landlord, doesn't get screwed, but also making sure his tenants get the apartments and services they are paying for.

To me, some of the provisions (particularly points 1, 2, and 3) seem either unenforceable or draconian.  But I'm not a landlord, and I'm not a lawyer - I'm just a tenant that NoNonsenseLandlord would probably refer to as a "dream tenant" - the wife and I make more than 10x rent, have sterling credit, and we stay put as long as the landlord keeps the property in good working order and treats us fairly.  I would RUN, not walk, away from this lease personally - a good, fair relationship with your landlord is worth more than $850. (though obviously,  see if there's anything you can do to get your $850 back...).

[BlueHouse]

If you still want the apartment, I suggest crossing out the first two bullets and signing the rest.  The first two sound unreasonable, but the rest seem completely controllable by the tenant and they seem to indicate a landlord who has been screwed by bad tenants in the past or perhaps a landlord who doesn't want to be bothered by tenants. 

If you cross out the two bullets and the landlord doesn't accept it, does the LL now have to refund the deposit?  or is it non-deductable for any reason?  That seems crazy! 

[Blatant]

I am neither a lawyer nor a landlord (and to be completely forthright, it's been years since I rented). However, bullet points 1 and 3 do seem completely onerous and potentially expensive for the tenant. There's no way I'd sign that.

[Another Reader]

I don't understand how they can charge an $850 application fee.  That would not be legal in some jurisdictions, as the fee is far in excess of the cost of processing an application.  I would not sign that lease, and I would try to get the $850 less a reasonable application fee back on the grounds you were not shown the lease before you paid the fee, so disclosure was not complete.

Check the on-line reviews for this company and the apartment complex.  If there are any tenant's rights groups, check with them about this property owner.  Surely someone must have challenged this in the past.

[Cathy]

The $850 is not really an application fee or a security deposit, even though OP and I arguably described it that way. If it were a security deposit, it would have to be returned as no agreement has been concluded.

It sounds to me like what happened here is that OP has already entered into an earlier agreement with the landlord whereby OP paid $850 for an option to lease the apartment on terms to be negotiated. The OP paid the $850, obtained the option, and is now negotiating the lease. OP will likely have to turn to general principles of contract law for any arguments recovering the $850, and in particular the law of option contracts, not necessarily specifically landlord-tenant law. A google search on the topic of tenancy law will be inadequate to research this, so OP should broaden any searches to general contract law principles.

In OP's most recent post, she or he mentions that they did sign a document governing the $850, so the first step would be to read it closely to see what kind of arguments might be available. Without reading the document, it would be unwise to speculate, but I wouldn't give up. It may be that there was insufficient clarity of terms for the option contract to be valid (essentially what Another Reader says). Alternatively, it may be that although the option contract was valid, there was an implied covenant respecting the form of lease agreement to be negotiated and the landlord has breached that covenant, as I speculated in my post. There are always arguments to be made. Whether the potential arguments have merit needs to be researched.

[Blatant]

You can't curse in your own home? Holy shikeys! God help me, what state is this in? The landlord sounds awesome. I'd be looking for most of my $850 back (minus a reasonable processing fee) just for the opportunity to screw with him/her.

[forummm]

I wouldn't want to live in a place that required me to do business with the people who thought that lease was a good way to do business. Good luck to you. Sorry about your $850. Hopefully you can let others know so they can avoid the misfortune of doing business with these bad actors.

[LeRainDrop]

Thank you everyone for the support and advice! It is very reassuring to know that I'm not being crazy about this. We are going to push back on the $850 deposit and I'll update this thread on what happens.

We will definitely post negative reviews and register a complaint with the Better Business Bureau.

1, 2, and 3 would be deal-breakers for me.  The landlord certainly comes across as greedy and petty -- possibly unlikely to be appropriately responsive if THEY cause an issue that needs to get fixed.  I would not sign a lease with this landlord.

[human]

Here in Ontario a contract to sign a lease is actually illegal but many landlords force people to do it anyway. I've called out a few landlords on it, they typically just shrug as the vacancy rate is usually pretty low were I live and people line up at open houses. I've always refused to sign these types of contracts but it burns me that these disgusting landlords get away with it.

[Cathy]

Here in Ontario a contract to sign a lease is actually illegal but many landlords force people to do it anyway.

This appears to be untrue for commercial options to lease. See, e.g., Hashem v. 2069513 Ontario Ltd., 2010 ONSC 2021 (agreement to sign lease was valid and binding contract); Enticor Properties Inc. v. Quik-Run Courier Ltd., 2004 CanLII 9428 (same). However, these cases do say that in order for an agreement to enter into a lease to be valid, it does need to set out "all the material terms of the contract not being matters incident to the relation of landlord and tenant, including any covenants or conditions, exceptions or reservations". Otherwise it is not enforceable under Ontario law.

There might be a different rule for residential dwellings. Do you have any authority for your proposition above? I ask because I am interested.

A quick skim of the Residential Tenancies Act, SO 2006, c 17 ("ORTA") reveals some arguable bases for the above proposition, but it's not totally clear. ORTA § 105(1) says that the only "security deposit" that a landlord can collect is the amount authorised by the statute, but the definition of "security deposit" does not appear to be broad enough to include consideration for an option purchased from the prospective lessor, because it only applies to amounts paid by a "tenant", which arguably does not include a mere option-holder. ORTA § 134 is much broader and, among other things, it prohibits a landlord from "directly or indirectly" collecting "any fee" "with respect to a rental unit" except those fees explicitly authorised by law. It's debatable whether consideration paid for an option is caught by this clause but it's plausible that such option contracts are prohibited by the statute. I conclude your proposition has possible merit in the context of residential tenancies but I did not locate any case law discussing these issues of statutory interpretation.

[pk_aeryn]

IANAL, but one thing to keep in mind is that even if you sign a lease where it says you're liable for xx, if that is not legal to be in leases, it won't hold up I'm court--- of course that means if they did withhold money from you or claim you owed it to them, you might have to go to court or mediation to settle it.  But just because you sign it doesn't make their illegal provisions uphold able legally.

You'd have to do research to find out if any of those are illegal-- and a landlord already trying to nickel and dime you probably won't be good in the long run so perhaps is better to cut your losses.

[gooki]

If it appears unlikely you'll get the deposit back, I'd cross out anything you don't agree to, and send it back. If they keep putting shit clauses back in, keep crossing them out. You should be able to drag this out for a month or two. At least this way you'll cost that twat at least $850 in lost rent.

[human]

Here in Ontario a contract to sign a lease is actually illegal but many landlords force people to do it anyway.

This appears to be untrue for commercial options to lease. See, e.g., Hashem v. 2069513 Ontario Ltd., 2010 ONSC 2021 (agreement to sign lease was valid and binding contract); Enticor Properties Inc. v. Quik-Run Courier Ltd., 2004 CanLII 9428 (same). However, these cases do say that in order for an agreement to enter into a lease to be valid, it does need to set out "all the material terms of the contract not being matters incident to the relation of landlord and tenant, including any covenants or conditions, exceptions or reservations". Otherwise it is not enforceable under Ontario law.

There might be a different rule for residential dwellings. Do you have any authority for your proposition above? I ask because I am interested.

A quick skim of the Residential Tenancies Act, SO 2006, c 17 ("ORTA") reveals some arguable bases for the above proposition, but it's not totally clear. ORTA § 105(1) says that the only "security deposit" that a landlord can collect is the amount authorised by the statute, but the definition of "security deposit" does not appear to be broad enough to include consideration for an option purchased from the prospective lessor, because it only applies to amounts paid by a "tenant", which arguably does not include a mere option-holder. ORTA § 134 is much broader and, among other things, it prohibits a landlord from "directly or indirectly" collecting "any fee" "with respect to a rental unit" except those fees explicitly authorised by law. It's debatable whether consideration paid for an option is caught by this clause but it's plausible that such option contracts are prohibited by the statute. I conclude your proposition has possible merit in the context of residential tenancies but I did not locate any case law discussing these issues of statutory interpretation.

http://www.sjto.gov.on.ca/ltb/faqs/#faq2 Only rent deposits are allowed: forgot to mention the regs, section 17 of the general regs lists what can be charged.

[music lover]

We had authorized the payment through our bank, but so far they haven't tried to take either the application fee of $35 or the deposit of $850. They also haven't responded to our email. I'll update if anything happens, but my guess is they know the lease is easy to challenge and won't get back to us.

I would call the bank and put a stop on the $850 immediately.

[chasesfish]

The first two are marginally legal.

However, it all depends on supply and demand.  Try to rent a house in a decent area of Dallas, if you argue with the lease they'll rent it to one of the six other applicants behind you.

[CommonCents]

We had authorized the payment through our bank, but so far they haven't tried to take either the application fee of $35 or the deposit of $850. They also haven't responded to our email. I'll update if anything happens, but my guess is they know the lease is easy to challenge and won't get back to us.

I would call the bank and put a stop on the $850 immediately.

+1
Cost of this pre-emptive action is worth it.

[Fuzz]

Talk to a lawyer in your jurisdiction, but I doubt they can enforce a provision that you pay their attorney's fees even when they're in the wrong. It would be hard for them to enforce that lease in my state. It's a crazy BS lease that indicates to me they are dumb landlords who think they're smart. So they're dangerous.

I would cross those provisions out and consider signing.

[Cpa Cat]

I would stop payment immediately and if I couldn't stop it, I would take them to small claims if they didn't return the deposit.

Common sense dictates that in order for the non-refundable aspect to be enforceable, they were obligated to put a reasonable lease in front of you.

"I get to sue you for whatever I want, and you have to pay my legal fees - regardless of the amount" is not reasonable.

Nor is, "You must waive your rights under the law."

Why not put a clause in there that says, "Tenant must have sex with landlord whenever the landlord demands it."

"If tenant stresses the landlord out, tenant must pay therapy and spa bills, at the landlord's discretion."

"Tenant waives right to privacy. Landlord may enter apartment without notice at whatever time he feels like."

"Tenant waives ownership rights to belongings inside the apartment."

"Landlord may remove dirty panties from tenant's laundry at landlord's discretion."

Heck. Why rent the place at all. With a non-refundable deposit, the landlord could just put ridiculous leases in front of people and never have to worry about anyone signing one. The potential income is only limited by how many applicants he might have per month! Yeah - I don't think so. Some contracts just aren't enforceable. Get your money back.

[CommonCents]

I would call the bank and put a stop on the $850 immediately.

I would too but my husband isn't comfortable with that level of confrontation.
[/quote]

Putting a stop is the essence of non-confrontation.  It requires no further communication with the prospective landlord.  :)

[LeRainDrop]

I would call the bank and put a stop on the $850 immediately.

I would too but my husband isn't comfortable with that level of confrontation.

Putting a stop is the essence of non-confrontation.  It requires no further communication with the prospective landlord.  :)

If that money goes through, the landlord is not going to give it back to you without a fight.  Look out for yourselves, not for landlord, and put a stop on that payment right away!

[Zamboni]

I would call the bank and put a stop on the $850 immediately.

I would too but my husband isn't comfortable with that level of confrontation.
[/quote]

Great! Then he won't want to argue with you after you call the bank to put in the stop payment order!  Good luck with everything.

[thd7t]

First, have you posted this in the Real Estate and Landlording section?  A lot of landlords there can probably tell you if this is all above board.

Second, consider looking at Missouri's laws on things like eviction liability.  Waiving this might not be legal and it might void the contract.  This is reasonable to look into with each of the contract parts that you don't like.

Third, as a number of people have mentioned (and you've started to deal with), this is a negotiation.  If you can demonstrate that you'll be an excellent tenant, they may waive some of their lease requirements.  You have some power here, because you are the customer.  You already seem to have a handle on this part, though.

[johnny847]

I forgot to add the lease had a provision against profanity, so they could conceivably sue us for cussing in our apartment, evict us, charge us their attorney fees, and then continue to collect rent after they evict us (because that was in the lease too).

That's just straight up bullshit.

Run away from this lease.
I'd get vengeful over things like this so I would fight them all day long about the $850 (I'd pursue the money even if it was a lot less than this, this is some major bullshit). But marital harmony is important too :). And I assume you could afford to eat a $850 loss.

[psyclotr0n]

I talked to my husband about canceling the authorization and he won't do it because one of his friends recently took their landlord to court and ended up losing several thousand dollars in damages. He is afraid that the landlord will sue us for several thousand dollars of damages if we revoke the authorization. I find this unlikely, but he is standing firm on it.

Sorry to hear that. Y'all should read the book "Winning Through Intimidation" by Robert Ringer.

[Cpa Cat]

I talked to my husband about canceling the authorization and he won't do it because one of his friends recently took their landlord to court and ended up losing several thousand dollars in damages. He is afraid that the landlord will sue us for several thousand dollars of damages if we revoke the authorization. I find this unlikely, but he is standing firm on it.

He could try... but unless you've somehow caused several thousand in damages, you shouldn't worry about it. The most that you'd have caused at that point is the $850 deposit.

Unless you've been driving past the landlord's place and throwing bricks at it. If you've doing that, then your husband might be right.

Remember - you don't have a lease with this person. He is not your landlord and never was. Unlike your friend - who I suspect ended up liable on a lease that he broke, or for damages that he caused in a home that he actually rented.

I'd get vengeful over things like this so I would fight them all day long about the $850 (I'd pursue the money even if it was a lot less than this, this is some major bullshit). But marital harmony is important too :).

I guess Johnny's right though. Just because I would be vengeful and fight something like this, doesn't mean that's the right choice for you. But me? "I'll see you at THE PEOPLE'S COURT!"