What Tenant Rights Can't Be Waived in a Lease?

A tenant cannot sign away the core protections of landlord-tenant law. State law determines whether a lease clause waiving the right to a livable unit, the security deposit rules, limits on landlord entry, protection from retaliation, a court hearing before eviction, or your liability for your own negligence is void, even if the tenant signed or initialed it. The rest of the lease usually still stands. In some states, knowingly using an illegal clause also costs you damages.

California and Florida impose good-faith duties even when the lease does not spell them out. For the terms a lease should contain, see what terms to include in a lease.

Which lease clauses are void even if the tenant signs?

State law decides which waivers fail, so the exact list depends on where the rental is. These six show up across the states we checked.

Protection from retaliatory eviction is another right a lease cannot remove. The California Department of Real Estate lists it, along with the deposit limits, entry limits, habitability, quiet enjoyment, and repair-and-deduct rights, as rights tenants have "no matter what the rental agreement states."

Washington adds other banned terms, including a confession of judgment (the tenant agreeing in advance to a judgment against them), a requirement to pay your attorney's fees beyond what state law allows, late fees on rent paid within 5 days of the due date, and rent paid only electronically.

What happens if your lease includes one?

At minimum, the clause is unenforceable. A court will not evict, award money, or excuse you based on it. Washington's statute says the rest of the lease stays in effect where it can work without the invalid clause.

Several states go further and let the tenant collect money:

For example, on a $1,800-a-month Oregon rental, a landlord who tries to enforce a clause waiving liability for negligence risks the tenant's actual damages plus up to $5,400 (3 x $1,800).

Acting on a void clause is usually more expensive than having it in the lease. In Florida, a landlord who shuts off utilities, changes the locks, or removes the tenant's doors or belongings instead of going to court owes the greater of actual and consequential damages or 3 months' rent, plus attorney's fees. See whether you can cut off a tenant's utilities.

What can a lease legally shift to the tenant?

A lease can assign everyday duties that the law lets the parties choose:

• Repairs and upkeep. In California, the tenant can agree to repair or maintain all or named parts of the unit for a real rent reduction. The tenant must intend and be able to make all necessary repairs. That agreement cannot waive the tenant's right to a livable unit. For your baseline duty, see how much maintenance and repair the law requires.
• Utilities, yard care, and house rules. The lease can make the tenant pay utilities, mow the lawn, or follow quiet hours and parking rules.
• Arbitration. California allows a written agreement to arbitrate disputes over whether the unit is unlivable, if it sets out the state's repair statutes. Washington allows an arbitration clause only when you pay the full cost and the agreement is notarized.

California also limits waivers of other statutory rights: a waiver not already void must be presented to the tenant before move-in, or it is void.

What duties apply even if the lease says nothing?

State law can impose duties even if a residential lease is silent:

• Warranty of habitability. In New York, every residential lease, written or oral, includes your promise that the unit and common areas are fit to live in and free of conditions dangerous to health or safety. A problem caused by the tenant or people under the tenant's control is not a breach. California tenants have the same warranty, and the lease cannot remove it.
• Quiet enjoyment. The tenant has the right to full use of the unit free from substantial interference from you. See the landlord's duty to provide quiet enjoyment.
• Deposit return. State deadlines for returning the deposit and itemizing deductions apply whatever the lease says. For one state's rules, see California security deposit laws.
• Good faith and fair dealing. Covered next.

Are you legally required to act in good faith?

The duty depends on state law; Texas does not imply it in every contract. Florida's landlord-tenant law says every rental agreement, and every duty under that law, "imposes an obligation of good faith in its performance or enforcement" (Fla. Stat. section 83.44). In California, courts imply a covenant of good faith and fair dealing in every rental agreement, even when the agreement never mentions it.

The California Department of Real Estate describes the duty this way: neither party may unreasonably interfere with the other's right to receive the benefits of the agreement, and each must do what the agreement presupposes to accomplish its purpose. The duty runs both ways, so it binds the tenant too.

In practice, use the rights the lease gives you for the reason they exist. If the lease requires your consent before the tenant subleases or adds a roommate, decide each request on its facts and answer in writing. If you enforce a rule, enforce it the same way each time. Whether specific conduct breached the duty is a question a court decides on the facts.