Enforceability of Lease and Rental Agreements

Sometimes in the real world, the enforceability of lease and rental agreements can be quite challenging to say the least. From your perspective as a landlord, you'll have to know just when to "crack-the-whip" and when to back off with trying to enforce your lease or rental agreement in court against a tenant. Through experience, however, you'll develop a sort of "sixth sense" that will guide you in making this decision.

"Theory" vs. "Real World" Practice

Since a lease or rental agreement is an actual "contract", between a landlord and tenant, then the rules of contract law apply. In a nutshell, whenever one of the parties to a contract does not perform their legal duties as specified in the contract, then the offended party can sue to enforce their rights under the contract. The offended party can seek "damages" from the offending party in court in order to be "made whole" again. That is the basic theory behind enforcement of legal contracts.

In reality, however, the black and white aspects of theory can sometimes fly right out the window. The enforceability of lease and rental agreements in court are more burdensome because of the following real world variables that are not accounted for by theory…

• Time - In the case of a landlord trying to evict a tenant for nonpayment of rent, several weeks may lapse (after the rent becomes due) before the actual court eviction hearing can take place. During the interim, the landlord suffers hardship and goes without income.
• Cost - To enforce a rental contract in court, the landlord will either have to hire a lawyer, or if representing themselves, pay for the court fees plus incur lost time and wages from work.
• The Legal System Process - In the above eviction example, the landlord will first have to obtain a court "judgement" to gain possession of the apartment plus any amount of back rent owed by the tenant. This does not take place immediately because the tenant is normally granted an "appeal period" by which to make application to a higher court for review of the judgement.

  If the tenant does not appeal the judgement and does not pay the rent or move out, then the landlord must go back to court and file an "execution" to have the eviction judgement actually enforced. At this point, a sheriff will actually evict the tenant and any of their belongings left in the premises. Normally, the tenant's possessions, if left behind, are placed in temporary storage (paid for by the landlord).

  In addition, if the tenant has not paid the back rent owed, the landlord would have to go back to court "again" in an attempt to collect the lost rent. It's now quite evident why the actual enforceability of lease and rental agreements can be a frustrating, uphill battle for landlords at times.

When all is said and done, the court system uses the basic principle of "fairness" behind its rulings involving the enforceability of lease and rental agreements. From a practical standpoint, in the above eviction example, if the tenant simply could not pay the rent due to an unforeseen hardship, then "cracking the whip" and enforcing the contract will be like trying to beat a broken drum. Even the court system does not have the ability to turn well-intentioned contract theory into reality.

So, how can a landlord, on average, be spared the hardships and legal realities of having to enforce lease and rental agreements? The answer lies in the proper screening of tenant applicants . This process alone will prevent a large majority of the unpleasant situations from occurring that would require enforcement of rental contracts. A qualified tenant coupled with a good rental contract is the key to success.

But if the need arises, it may be more practical (as a possible alternative) to pay the tenant's moving costs out of your own pocket so that they'll move voluntarily instead of going to court to evict them.

And remember, the information provided herein is not offered as legal advice. Always seek legal counsel from a qualified attorney whenever confronting legal matters regarding your own particular situation.

For more in-depth information about enforceability of lease and rental agreements, please visit The Landlord's Library book collection. It's a terrific, one-stop source for practical, comprehensive information on the entire subject of residential landlording.

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