Should my lease be in writing with my tenant?
by Charles B Rosenstein Esq. Partner, Rosenstein Orapello, PLLC
The simple answer is YES YES YES! There are several reasons to have a written lease in place with your tenants. The most important reason to have a written lease in place with your tenants is so if it becomes necessary to take the tenant to Court for any reason, NYS law will only allow you to recover your fees and costs and attorneys fees if your written lease provides for this right to recover these expenses incurred. Without this provision in a written lease, the Court will not grant you these expenses incurred as part of any judgment that you may be entitled to. This same line of reasoning applies to charging and collecting late fees from tenants if the rent is not paid by a certain date. Again, without a written provision setting forth when the late fee will be incurred and what the late fee to be charged will be, the Court will not grant a landlord any late fees without this written provision in a lease.
YES YES YES!
A written lease can also clarify an array of issues between the landlord and the tenant such as who is responsible for the payment of utilities. Who is responsible for snow and garbage removal? How many persons are supposed to be residing in the premises and who they are. Is the tenant required to have renter’s insurance in place prior to taking occupancy and during the terms of the tenancy. What shall be considered a “default” under the lease and how and when is it to be cured by tenant if there is a default.
Even a month to month tenancy can and should have a written lease agreement signed by all tenants before occupancy is allowed by a landlord.
While a “verbal” lease is enforceable in Court, the burden of proof is clearly on the landlord to substantiate what the terms of the verbal lease are and what “terms” have been violated by the tenant which should subject the tenant to potential eviction. When a Judge has something to “hang her hat on” such as the terms of a well prepared written lease, it makes it much easier for the Court to point out to the tenant what terms were violated and why the Court needs to rule in the landlord’s favor. Even a month to month tenancy can and should have a written lease agreement signed by all tenants before occupancy is allowed by a landlord. You will thank yourself and your attorney by following this rule.