Illegal Lease Clauses: What Your Landlord Can't Enforce

A lease clause is unenforceable when it tries to take away a right that your state's landlord-tenant law says tenants cannot give up, and signing the lease does not change that. California's statutes, for example, void clauses that waive the landlord's duty to keep the unit livable, your security deposit rights, notices or hearings the law requires, your right to sue, or the landlord's legal duty of care to prevent injury and property damage. The rest of the lease usually still binds you. Arizona, Iowa, Oregon, and Washington also let you recover extra damages, generally when the landlord knew the clause was prohibited.

Which lease clauses are usually unenforceable?

Each state lists the clauses it voids in its landlord-tenant statutes, so the exact list depends on where you rent. The table shows the clause types these laws target, with examples from seven states:

A confession of judgment clause lets someone admit the debt in court on your behalf, so the landlord can get a judgment without you contesting it. The attorney fee rules differ: Iowa bars any clause making you pay the landlord's fees, Washington allows fees only where its landlord-tenant act authorizes them and a court awards them, Arizona allows a lease clause that awards fees to whichever side wins in court, and in Florida the winner of a lease lawsuit can recover attorney fees and court costs, a right the lease cannot waive.

Arbitration clauses are treated differently. An arbitration clause sends disputes to a private arbitrator instead of a court, and the Federal Arbitration Act generally requires courts to enforce these agreements as written. In 2011, the U.S. Supreme Court held that this federal law overrides a California rule that refused to enforce class-action waivers in consumer arbitration agreements, so a lease arbitration clause can be enforceable even in a state that voids a plain waiver of your right to sue.

Some states void clauses specific to their own law. Washington voids lease terms that charge a late fee on rent paid within five days of the due date, and Arizona voids clauses that limit your right to call the police or other emergency help in an emergency or that penalize you for calling.

Most of these statutes do not address early termination fees or automatic renewal terms, so read those closely before you sign. Oregon is an exception: it voids clauses that set damages in advance, except a fee of up to 1.5 times the monthly rent for breaking a fixed-term lease, and a landlord who charges that fee cannot also collect rent for the period after it knew or should have known you left, or its costs of finding a new tenant. Related guides: red flag lease clauses to watch for and nonrefundable deposits and fees.

Does an illegal clause cancel the rest of the lease?

Usually not. The void clause drops out and the rest of the lease stays in force, so you still owe rent and must follow the lease's valid rules. Washington's statute says this directly: a clause waiving a tenant right is unenforceable, but that "shall not affect other provisions of the agreement which can be given effect without them." Check your lease for a severability clause, which says the same thing in contract form.

A court can go further when a lease is unconscionable, meaning grossly unfair at the time it was signed. In Oregon, a court that finds a clause unconscionable may refuse to enforce the whole agreement, enforce it without that clause, or limit how the clause applies.

The landlord also stays bound by the law the clause tried to waive. If your lease says you waive repairs, a landlord in California or New York must still keep the unit livable, and you keep your habitability remedies; see your right to a habitable home. In California, a tenant can still agree to take on specific repairs or maintenance as part of the rent deal; what the law voids is a waiver of the landlord's duty to fix conditions that make the unit unlivable. These protections sit within the wider set of rights described in your basic rights as a tenant.

What should you do about an illegal clause?

1. Before you sign, ask to strike it. Ask the landlord to cross out the clause, and have both of you initial the change on every copy of the lease.
2. Answer in writing when the landlord relies on it. If the landlord cites the clause, for example to keep your deposit or to refuse a repair, reply in writing, name the statute that voids it, and keep a copy of your letter.
3. Raise it in court. If the landlord sues you or files an eviction based on the clause, tell the judge which statute makes it void. In the states in the next section, also ask for the extra damages the statute allows.

Which states penalize landlords for using illegal clauses?

California's and New York's statutes in the table void these clauses but do not add a separate penalty for including them. A few states go further, most of them when the landlord knew the clause was prohibited:

Statutory damages are an amount the law allows on top of your proven losses. For example, if your rent in Washington is $1,800 a month and your landlord knowingly used a lease with a prohibited clause, a court can award your actual losses plus up to $3,600 in statutory damages (2 x $1,800), along with court costs and attorney fees. In Oregon, the same $1,800 rent could mean up to $5,400 (3 x $1,800) on top of your actual damages, but only if the landlord also tried to enforce the clause. The court decides the amount within these limits.