| Assuming RLTO
coverage, Section
5-12-140
prohibits certain lease provisions. Not only is a prohibited lease
provision unenforceable, but if a landlord attempts to enforce such a
provision, they owe the tenant damages equal to two-months' rent plus costs
and attorney fees. The broadest prohibition is against any lease
provision whereby the tenant agrees to waive any rights under the whole
RLTO, or to give up any of the landlord's obligations under the RLTO.
This is 5-12-140(a). Section 140 also prohibits late rent charges
or early rent payment discounts in excess of an amount determined by a
formula. That formula permits $10 on the first $500 in monthly rent
plus 5% of the monthly rental amount in excess of $500.
Some examples our office
has encountered of illegal provisions, and landlords trying to enforce them,
include agreements that the landlord can show the unit on less than
two-days' notice as is required under RLTO 5-12-050 (140(a)), agreement that the tenant will pay the landlord's
attorney fees in any dispute arising out of the tenancy (140(f)),
agreement that the landlord can terminate the lease before its stated
expiration date on 60 days' notice if they decide to sell it (140(g)),
and illegally excessive late rent fees (140(h)). We have seen
lease provisions that purport to waive a landlord's liability for personal
injury caused by the landlord's negligence in leases, but never have seen a
landlord attempt to enforce them.
Some provisions are
illegal depending on the circumstances. For example, a late rent
payment fee of "$5 per day" is lawful on a $500 monthly rent for the first
two days that rent is late ($10 late fee total) but would become illegal on
the third day and beyond. In our opinion, this makes the whole late
fee unenforceable so that there is no late fee, because the late fee is an
"agreement" to pay an illegal late fee. There is no authoritative
answer, and this is only our opinion. |
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