I rarely work on leases on behalf of tenants anymore.

It’s not that I’m pro-landlord or anything, although if we got into a discussion about who has it worse, tenants or landlords, I would side with the latter.

It’s that people don’t come to me for representation in their lease search.  I also don’t solicit the business the way I would have in 2004.

However, every year, I probably work on twenty leases on behalf of my landlord-clients, for most of whom I’m finding the second, third, or fourth tenant – or beyond.

So is it odd that I would write a blog post entitled, “Beware These Lease Clauses” if I generally work with landlords?

I don’t think so.

I’ve always taken the honest approach on TRB and I believe in transparency, so when I recently found a copy of an extremely lengthy lease agreement that contained over-the-top clauses designed to protect the landlord, I thought it would make for good blog fodder.

Many of the clauses I’m about to show you are unusual.  Some, I have never seen before.  But all of them are clauses that, if you’re a tenant, you need to sit down and question, as well as decide if you want to sign on the dotted line.

Here’s an example:

THE AGREEMENT TO LEASE IS CONDITIONAL until two (2) business days upon acceptance of this offer, upon the Landlord or his authorized agents to review the rental application, credit worthiness, references of the prospective Tenant(s) as well as having an optional interview with the prospective Tenant(s). Unless the Landlord gives notice in writing delivered to the Tenant personally, or in accordance with any other provisions for the delivery of notice in this Agreement to Lease or any Schedule thereto, in the time provided in this condition, that this condition is fulfilled, this offer shall be null and void, and the deposit shall be returned to the Tenant in full without interest or deduction. This condition is included for the benefit of the Landlord and may be waived at the Landlord’s sole option by notice in writing to the Tenant as aforesaid within the time period stated herein.

It’s not unusual to see a conditional lease, although I don’t work with them on my end.

If you’re a tenant, do you want to tie yourself into a conditional lease?  Do you want to give the landlord the “power” at the onset?  Do you want to get excited about finding a place, only to learn two days later that you’re not “approved?”

I think the issue I take with the clause above is the “optional interview.”

I have never advised my landlord clients to interview the tenants, since an interview followed by a rejection is just screaming for a discrimination case.  I learned this when I represented an Ontario Supreme Court judge and the suggestion of “meeting with the tenants before deciding” was met with a long lecture…

Personally, I don’t advise my landlords to sign conditional leases.  I tell them to work with an offer in hand, do their dilligence, and take the time they need – regardless of any “irrevocable” on the offer itself.  If the offer expires or the tenant walks away, who cares.  There’s always another tenant waiting.

–

This clause makes absolutely zero sense and is a non-starter for me:

If the Landlord is unable to give possession of the Leased Premises on the date the Tenant is entitled to have possession in accordance with clause 4 of the Standard Form of Lease, the Landlord shall not be liable for damages arising out of the failure to give possession and shall give possession as soon as they are able to do so. The rent shall abate until the Landlord provides possession of the Rental Unit to the Tenant. The Landlord’s failure to grant possession on the date set out above shall not in any way affect the validity of this Agreement, and the Tenant’s obligations, or in any way be construed to extend the term of the Agreement.

No way.

Unh-uh.  Or however that’s spelled…

Do you see what’s going on here?

The landlord is saying that if he or she cannot provide possession on the specified date, that not only does the tenant have to deal with the associated costs on his or her own, but the lease is still valid, and the tenant is expected to move in “as soon as they are able to do so.”

The truth is: if a tenant signed a lease for December 1st, and the landlord didn’t have vacant possession until December 10th, that tenant would and could do whatever he or she wants.  The landlord isn’t going to chase the tenant through the Landlord & Tenant Board for the year’s rent and to enforce the contract.

However, we have to assume that the tenant has provided a deposit of first-and-last month’s rent, so the landlord has leverage here.

I would never, ever advise a tenant to sign a lease with this clause.

–

Here’s a new one:

It is understood that any payment made by the Tenant(s) to the Landlord will be applied against the Tenant’s account in a manner at the sole discretion of the Landlord, even when specifically identified by the Tenant as “Rent”, and will generally be applied to the oldest outstanding debt, whether that debt is rent, services charges or fees, Court costs, NSF fees, unpaid utilities or damages that the Tenant may be responsible for, or any other monies owing to the Landlord which the Landlord is entitled to collect.

Let’s say that the landlord tells the tenant, “You owe me $500” for reason A, B, or C.  Maybe the landlord repaired something in the unit and blamed the tenant, when it was not the tenant’s fault.

The tenant would say, “No way, I don’t owe you for that, it’s not in the lease,” but then when the tenant pays his $2,200 rent the next month, the landlord can tell the tenant, “I’m only applying $1,700 per month to the rent, and I’m applying $500 of your rent payment to the outstanding repair bill.”

Then, the landlord can claim non-payment of rent.

This is sneaky.

I have never included this on behalf of my landlord clients and I don’t know that I would.

But I most certainly would not recommend that a tenant sign this.

–

This one feels very corporate, but also like you’re back in Grade School:

Prior to the Tenant(s) vacating the rented premises at termination and prior to all articles being removed from the rented premises, the Tenant(s) shall arrange with the Landlord to have an outgoing unit inspection performed, and they shall complete an “Outgoing Inspection Report” in duplicate, which shall be signed by both parties with the Tenant(s) retaining one copy.

This is all well and good, but what’s the point of the “Inspection” if there are no consequences set out in the clause?

I lived in an apartment building, off-campus, in Hamilton back in 2003.  I actually just sat back and reminisced for about ten minutes before coming back to writing this.  I may have even pulled out some photos…

…anyways, back then, I had an inspection at the onset of the lease and when I was leaving.  It was like I had rented a car From Hertz and somebody from the front desk did a quick check of the car for bumps and scratches.

This clause isn’t problematic, but it’s indicative of who the tenant is leasing from, especially if it’s an individual landlord/investor.

–

This one is ridiculous:

A Landlord may enter the rental unit without written notice to show the rental unit to a prospective tenant if:

a) The Landlord and Tenant(s) have agreed that the tenancy will be terminated or one of them has given notice of termination to the other;
b) The Landlord enters the unit between the hours of 8 a.m. and 8 p.m.; and
c) If before entering, the Landlord informs or makes a reasonable effort to inform the Tenant(s) of their intention to do so.

Without notice!

Why would a tenant sign away his or her rights?

Every tenant has the right two twenty-four hours’ notice.  Why sign this away before you’ve even moved in?

Oh, because it’s in the lease, and the landlord won’t lease to you if you don’t sign this.

Do you see who you’re getting into bed with?

I’d love to know what a “reasonable effort” is, according to this landlord…

–

Here’s another case of being told to willingly give up rights:

In the event the Tenant(s) is required by law or agrees to vacate the Rented Premises on or before a certain date and the Landlord enters into a Tenancy Agreement with a third party to rent the premises for a term commencing immediately after such date and if the Tenant(s) fails to give the Landlord vacant possession of the Rented Premises on or before such date thereby causing the Landlord to be liable to such third party, the Tenant(s) hereby indemnifies the Landlord for all damages suffered thereby including, without limiting the generality of the foregoing, for all legal costs incurred by the Landlord on a solicitor and-client basis and for damages incurred by the incoming tenant in respect of such improper over-holding.

Tenants have ridiculous rights in this province.

One of those rights is to essentially stay in a unit after being evicted by the landlord or even giving notice to the landlord, as the tenant waits for a hearing at the LTB.

This clause requires the tenant to indemnify the landlord for any harm caused by the tenant staying past the vacancy date, which is the tenant’s right.

Again, I don’t like the system we have, and this clause is one that I would highly recommend landlords should use!

But for the tenants, beware of this clause.

Geez, I feel like I’m playing both sides…

–

I can’t imagine the problems this clause would cause:

The Tenant(s) agree(s) that if the premises are vacant or abandoned, or if rent at any time remains unpaid despite the presence of a last month’s rent deposit, and the majority of usual furnishings and effects are absent from the premises, then the Landlord may presume that the Tenant has abandoned the Rental Unit the Tenant shall be deemed to have abandoned the premises and the Landlord shall be entitled to, and may immediately enter the premises without notice to the Tenant, and shall have the right to re-rent the premises and the Tenant shall remain fully liable under this Tenancy Agreement until the premises are re-rented. Anything left on the premises may at any time be sold or otherwise disposed of by the Landlord to such person and at such prices as it may see fit, and the net proceeds of any sale, after deducting any costs, shall be applied in reduction of indebtedness of the Tenant to the Landlord. If the Landlord has acted on reasonable grounds and in good faith, neither the Landlord nor its employees or agents shall be liable for damages of any nature resulting to the Tenant or other person or persons for such re-entry, disposition or sale.

So if the tenant is the legal occupant to the unit, but they’ve removed a majority of furnishings, the landlord can deem the unit “abandoned” and lease it to somebody else?

And sell the tenants’ remaining belongings?

Seriously, who thought of this?

What would happen in spy-movies where the protagonist has an apartment in Vienna that he hasn’t been to in four years, but where his fake passports, currency from nine countries, and handgun with a silencer are stored?  Just think of the problem this creates for Jason Bourne in every single movie!

Even if the rent is unpaid – which the clause above specifies is an “if/or,” the tenant still has the legal right to the unit until evicted by the Landlord & Tenant Board.

–

I have never seen the word “death” in a lease, so this was worth mentioning:

Upon the death of a sole Tenant, this Tenancy Agreement or any renewal thereof shall terminate thirty (30) days after the death of the sole Tenant. In the event that there is more than one Tenant and upon the death of one of them, the tenancy shall be deemed to be amended to include the Remaining Tenant(s) as Tenant(s), along with the Estate of the deceased Tenant for a period of thirty (30) days after the death of the Tenant, after which the tenancy of the Estate only shall be terminated and the Tenancy Agreement and any renewal thereof shall be deemed to be amended in the name of the surviving Tenant(s) only.

I’ll be honest: I have no idea what happens to a lease agreement in the event that a tenant dies, so maybe I have no business discussing this clause.

However, I have also never seen this clause, or any clause dealing with the death of a tenant, included in a lease.

That makes me question who is coming up with all this, and how.

–

Also included in the lease was a reference to “RULES,” which were essentially tacked on to the end of the lease via a single clause that stated, “Tenant agrees to observe and comply with the Rules as set out in the attached hereto.”

Here are some of the interesting rules…

The Tenant(s) agree that due to potential damage to walls and the potential transmission of noise through walls, they will not install any flat screen TV or similar device to any wall or partition, but will instead use a suitable stand provided by the manufacturer.

Not in any way unreasonable, however, I have never seen this before.

I have no complaint.  I’m just pointing out the attention to detail.

–

How about pointing out the obvious?

Like this:

Entrance doors of the apartment shall remain closed except during ingress or egress.

If we really have to include this as a “rule,” I would question why.

–

Do you have that friend that always chirps you for opening the windows to your car and turning on the air conditioner as soon as you get inside on a hot summer day?

I hate that guy.

I realize that if I were blasting A/C with the windows open ten minutes from now, it wouldn’t be as cool.

But getting into a 45-degree car, turning on the A/C to get ‘er started, and opening the windows isn’t a faux pas.

The Tenant must observe strict care not to allow their windows and doors leading to the outside to remain open so as to admit rain or snow or as to interfere with the heating or cooling of the building.

I also question why we have to include this:

Nothing shall be thrown by the Tenants, other occupants of the unit or invitees out of the windows, doors or over the balconies or out of the upper levels of the building.

Can you legislate common sense?

If we’re including this as a rule, shouldn’t we outline that the tenant is not permitted to put squirrels down their pants for the purposes of gambling?

–

Here’s a “zero romance on Valentine’s Day” rule:

No cooking shall be done in or about any part of the Rental Unit except in the kitchen areas provided therefore. The use of candles is prohibited. No open flame of any nature is allowed in or around the Premises.

No incense.

No candles.

No hot oil massages while listening to Bon Jovi and burning a vanilla candle from Pottery Barn.

No guesses as to who does that, either…

–

Here’s a common sense clause that I, unfortunately, have had to include as a standard clause in my leases:

The Landlord shall furnish light bulbs in all of the fixtures and fuses in any panel boxes installed by the Landlord at the time that the Tenant takes possession of the Rental unit, but not thereafter. The replacement of electric light bulbs, fuses and batteries within the rented premises is the responsibility of the Tenant.

If you’ve ever had a tenant say, “I’m not paying rent until you come change the light bulb in the kitchen,” you’ll be happy you included that clause or “rule” in this case.

–

Here’s one that combines common sense with micromanaging:

The Tenant is liable for any damage done by water left running either by his willful or negligent conduct or that of persons permitted on the premises by him. For both safety and conservation purposes, water shall not be left running unless it is in actual use in the Rental Unit.

I get it.  I do.

But again, have you ever seen a lease agreement where the landlord feels the need to spell out, “Don’t run the water unless you’re using it?”

What about running the tap until it gets hot?  Is that allowed?

“For safety,” it says.  Uh huh.  And “for conservation purposes.”

It’s not that it’s outlandish but I have just never seen anything like this before.

–

Does this need to be spelled out in the lease?

The Tenant shall keep the Leased Premises free from vermin, pests and rodents.

I would hate to meet the tenant who would only keep a property free of vermin and rodents because he’s contractually obligated…

–

Last, but not least:

The Tenant shall not place or allow to be placed rubbers, shoes, boots, umbrellas, garbage etc. in the hallways of the premises. Bicycles, baby carriages, grocery carts, toys and other objects are not to be brought into or left in common areas inside or outside of the building except as specifically designated by the Landlord, and the entrance, lawns, driveways, halls, corridors, basements and walks shall not be obstructed in any way.

Uh-huh.

Those are rubber boots, right?

Gentlemen from the 1960’s, get your heads on straight, geez.

Who’s bringing a grocery cart into the building?  Is it in that kind of area?

But on the flip side, are we strollers?  They actually said, “baby carriage,” but that’s a really old term.  Reminds me of when they used “rubbers” to describe…..er…..yeah…

–

Phew!

I hope you got through all that and didn’t skim!

If you’re a tenant, you’re welcome.

If you’re a landlord, don’t be mad at me like I’m a magician revealing the secrets that our magician’s code goes against.

I still do believe that the rights tenants enjoy in the Province of Ontario are so incredibly over-the-top that it risks bringing down the entire system, but I was so bewildered by these twelve pages of lease clauses that I wanted to share.

Have a great weekend, everybody!