Leasing Review - FAQs for Leases

Christopher J. Huntley
Originally published on the NAIOP Minnesota online blog.

An oral lease can be valid if the term is under a year. Any oral lease or sublease for a term over a year is not valid. An assignment of a lease with more than a year remaining on the term, or any oral amendment or modification of a lease with a remaining term of more than one year, is also invalid. There are also prohibitions on landlords maintaining oral leases for residential premises in buildings with twelve or more units regardless of the length of the term.

  • Is a landlord liable for injuries suffered by third parties that occur in the tenant’s premises?

A landlord can be liable in certain circumstances for injuries suffered by an employee, invitee, etc. (e.g. for violations of housing codes).

  • Can a landlord go after the tenant’s spouse for amounts due?

A tenant’s spouse is generally not considered a co-tenant simply by the nature of the relationship of the tenant and his or her spouse. There are limited circumstances when a landlord can go after the assets of a spouse who is not a signatory to the lease, but these circumstances are very limited.

  • Can a tenant withhold its rental payment if the landlord does not undertake its obligations under the terms of the lease?

Generally, no. The tenant’s covenant to pay rent is independent of the landlord’s obligation to perform under the lease. There are, however, statutory exceptions to the general rule. For example, if the landlord violates the implied covenant of habitability in a residential lease, the tenant can withhold its rental payment.

  • When does the tenant’s obligation to pay rent accrue if the lease is silent?

If there are no provisions in the lease with regard to when the tenant is obligated to pay rent, the tenant is obligated to pay rent at the end of the term of the lease. Note that most leases contain provisions stating that the tenant’s rental amount is due on a monthly basis. This provision will likely be interpreted to mean that the rent payment is due monthly.

  • Does a landlord need the tenant’s consent before assigning its interest under the lease?

Generally, no unless the lease specifically requires the tenant’s consent.

  • What implied covenants are contained in every lease?

The tenant has the implied duty to not commit waste (i.e. not intentionally or negligently destroy the premises), to make repairs necessary to maintain the premises (but excluding substantial repairs), and to return the premises to the condition that it existed in at the commencement of the lease term including removing any improvements that the tenant added to the premises. The landlord must comply with the implied covenant of quiet enjoyment (i.e neither the landlord nor a third party with superior rights to the landlord may interfere with the tenant’s quiet enjoyment of the premises), and the implied covenant of habitability for residential leases (i.e. all premises are habitable and the conditions in the premises are reasonably suitable for human residence). Note that the tenant’s covenants can be modified by the terms of the lease.

  • Can a landlord accept rent without waiving an existing tenant default?

Generally, no. The landlord, however, must have knowledge of the default. There is also an exception if the default is of a covenant in the lease that is part of the consideration that the landlord receives for leasing the tenant’s premises (e.g. the covenant to pay real estate taxes).

  • Does a landlord have a duty to mitigate damages?

Until such time as the lease is terminated, the landlord has no obligation to mitigate damages. Once the lease is terminated, however, the landlord does have such a duty.

  • Can a landlord or tenant seek attorney’s fees and expenses if it successfully sues to enforce lease covenants?

Absent a specific contractual or statutory obligation (the latter of which is very rare), each party is responsible for its own legal fees. A court will also enforce a lease provision that obligates the losing party to pay the successful party’s legal fees.


DISCLAIMER: These articles are to be used for general information purposes only, not as a substitute for in-person evaluations. The information contained herein is not legal advice and no attorney-client relationship is formed through these articles.