Illegal Clauses in a Rental Lease

Leases are binding contracts, and they control a lot of what happens during the course of a tenancy—like whether or not subletting is allowed, or the way in which a tenant should pay rent. But there are certain provisions that can never be included in a residential lease. If they are, they’re considered void and unenforceable. We’ve listed the most common illegal clauses below. Plus, you can choose your state from the dropdown menu above for more specifics about the law where you rent.

A lease can’t waive a landlord's duty to keep a rental habitable

In every U.S. state (other than Arkansas), there is an implied warranty of habitability—in simpler terms, a guarantee that landlords will keep their rental units in livable condition throughout a tenancy. This right can’t be waived, no matter what a lease says. An unenforceable clause might state that the tenant is responsible for all repairs and maintenance.

There are some states that do allow exceptions to this rule. In Texas, for instance, a lease can hold the tenant responsible for fixing the doors, windows, and screens specifically. But this is only allowed if the landlord and tenant have clearly agreed to this.

A lease can’t waive a landlord’s duty to mitigate damages

In most states, landlords are required to “mitigate damages” if a tenant moves out before the end of their agreed-upon lease term. This means that a landlord has to make a reasonable effort to re-rent the now-empty unit—and, if they are successful, the first tenant can stop paying rent under their original lease once the new tenant moves in.

An illegal lease provision might state that, upon terminating the lease, a tenant must pay all the rent due for the remainder of the lease term upfront. Legally, a tenant is only responsible for monthly rent payments as they are due—and, as soon as a new tenant is found, they’re no longer on the hook.

A lease can’t waive entry laws for landlords

A lot of states have specific laws that govern when landlords are allowed to enter a rental unit—and how much notice they must provide tenants when they do. The exact amounts of notice vary between jurisdictions, but in pretty much all cases a clause in the lease that gives a landlord the right to enter the unit at any time without notice is unenforceable.

If a landlord does include a provision about when and how they can enter their unit, it must conform to any local entry laws. For instance, in California, landlords must give tenants 24 hours’ notice before entering the apartment. A clause in a lease that tries to shorten that period at all is illegal.

And more…

There are several other provisions that are typically unenforceable if included in a lease. These include:

• A clause that punishes tenants in any way for calling the police if they reasonably believe someone is in trouble
• A clause that speeds up rent payments if a tenant breaks a rule in the lease
• A clause that allows a landlord to seize a tenant’s property if they fall behind on rent
• A clause that takes away a tenant’s right to a trial by jury (certain states allow a lease to call for arbitration first, but completely banning the possibility of a trial in court is not legal)
• A clause that requires tenants to pay for all damages to a rental unit, regardless of whether or not it was their fault
• A clause that relieves a landlord of all liability if mold is discovered would likely be struck down by state courts. For example in 2015 an Indiana court determined this to be unenforceable.

Landlords should avoid including any of these clauses in a lease, and tenants should check through any lease carefully before they sign to make sure it doesn't include any of these terms.

A lease isn’t necessarily void if it contains an illegal clause

In some places, a lease may be wholly void if it contains an illegal provision. But that’s not universally true. In many states, including California and Washington, the rest of the lease is still enforceable—but a tenant can sue their landlord for any damages they suffered under an illegal lease term.

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