Living in a Rental Without a Written Lease

How to Rent a Property Without a Lease Agreement

Determining Your Legal Rights in Tenancy Without a Lease
If you do not have a lease, you are still a tenant under the law and can be considered "month-to-month," at will of the tenancy, or holdover tenant.
When you rent an apartment or house to live in, the landlord does not have to give you a written lease. If facts exist that would indicate to a reasonable person that a rental agreement to rent the property exists, then you are considered a tenant under the law.
Examples of such facts that may indicate a rental agreement may exist:
You Are A Month-to-Month Tenant
If no oral or written agreement exists regarding the length of your tenancy, you are considered a month-to-month tenant. Oral or written agreements to rent month-to-month properties are fairly common. However, if you do rent a property with a month to month verbal or written agreement, that is how the tenancy is considered by the law.
Your Rent Gets Paid
Another indication you are a tenant is the fact that you pay rent for the property you are living in. The truth is that if you pay rent to someone with the understanding that you will have the exclusive use of living in that property, you are a tenant. Even if you do not have a written or oral agreement with the landlord, the general agreement to pay rent for the exclusive right to use the property is simply considered a month to month tenancy .
Your month-to-month tenancy means you are probably paying the rent on the first of each month or every month, but that is it. If you pay rent monthly and the landlord tries to make you leave before the month has expired, then a California residential landlord is required to provide you with a 30-day notice to vacate. If you are a month-to-month tenant and the landlord wants you to vacate the property, he or she is required to give you 30 days after receipt of the notice, not 30 days from the notice date.
Tenancy At Will
If you do not have a written or oral agreement with your landlord, but the landlord accepts payment of your rent for habitation, you may be considered a tenant at will. This means that your landlord may notify you of his or her desire that you vacate the premises with a few days, usually 5 or 10 days, notice. In this case, your landlord specifically cannot get your 30-day notice to vacate.
A Holdover Tenant
A holdover tenant is someone who overstays his ability to live in the property he was renting. If you were leasing a property and you did not renew or extend the lease, then you may be a holdover tenant. A holdover tenancy is a month to month tenancy wherein a lease over expires. If you lived in the property, under a written or oral agreement, and the landlord accepts rent for an additional period of time without a new agreement, then you may be a holdover tenant. In this case, the landlord must provide you with a 30-day notice before you have to quit.

Tenant’s Rights and Duties

A tenant who lives in a rental property, even where that person does not have a signed lease agreement, has rights and obligations to that property and the property owner. These rights and obligations can vary depending on jurisdiction. Even where there is no written lease agreement, a tenant may bring with them certain rights.
One such right is implied habitability. The implied warranty of habitability refers to an understanding between a landlord and a tenant that the property will be maintained in a livable condition for the entire duration the tenant resides there. Violations to this warranty often include a problem with the water, heating, or plumbing system in the rental property. Landlords who violate the implied warranty of habitability may be held liable for the damages caused by not providing a habitable residence.
Other protections tenants have concerning landlord conduct include eviction laws. For example, a property owner cannot evict a tenant from the property unless a notice is provided or the tenant indicates there is a wish to leave the property. In most jurisdictions, these notices must be in writing and follow specific statutory requirements. The manner in which the landlord serves the notice also must follow the appropriate procedure, depending on the local laws.
Additionally, tenants may have retaliation protections. Most places of habitation have laws that prohibit landlords from retaliating against tenants who engage in protected activities. These protected activities often include tenants complaining about the habitability of their residence. If a tenant feels they have been retaliated against, they may be able to bring a lawsuit and obtain relief.
Most local laws also make provisions for the storage of personal property. In many states, landlords are required to keep particular records and adhere to notice requirements before property left behind by a tenant is removed. Tenants should familiarize themselves with the proper procedures if they have property left behind after a tenancy.
Tenants may have reporting and disclosure laws applicable during the tenancy and at the beginning of the tenancy. For example, a rental unit built before the 1978 federal law banning the use of lead-based paint must be disclosed to tenants by the landlord. Landlords are required to make an attempt to remove lead paint without being greater than the cost of abatement. A tenant who feels lead paint has been improperly removed while they resided at the residence may have a forum in which to complain.
Another area of concern for tenants are the laws regarding rent increases. In many situations, localities may restrict the ability to raise rents in order to hold down the cost of living. A landlord who raises the rent without following these laws may be found liable by a court.
Tenants and landlords should familiarize themselves with the laws concerning rental properties in their locality.

Landlord’s Responsibilities in a Tenancy Without a Written Contract

Individuals living without a signed lease agreement still have certain rights. A landlord can be a stranger to landlord-tenant relationships even if they do not have a written or signed lease agreement. Even when tenants are month-to-month, there are obligations a landlord must fulfill.
For example, landlords must prevent excess harm that may affect the premises and tenants’ health, safety, or welfare. If any violations occur, the tenants may move out and cancel their rental agreement without further obligation. If a landlord doesn’t collect rent in a timely manner, then the court will grant payment of all amounts within five days. A landlord must also maintain the property. They must ensure the furniture and appliances provided by the landlord, such as a common kitchen, bathroom, elevator, central air conditioning, or any other common equipment in the premises are in good working condition. It’s the landlord’s responsibility to provide adequate maintenance where necessary without extra charge. Utilities must also be provided without additional cost unless it states otherwise in the rental agreement. The landlord must install a smoke detector in each unit of the premises. The tenant must test the smoke detector at the beginning of every quarterly rental payment period. The landlord also has the right of entry to the tenant’s unit for various reasons, but in most cases, reasonable notice must be given. Landlords can only evict tenants if they give a 30-day written notice when the tenant doesn’t pay rent. If the tenant is a month-to-month occupant, then the landlord must give the tenants either a 30-day or 60-day notice in the event of cancellation.

Common Concerns and Conflicts

The absence of a signed lease agreement does not preclude the landlord or tenant from withholding the payment of rent due to various circumstances – a leaky roof, a broken air-conditioning unit, or even lack of hot water. Ensuing disputes between the parties may necessitate resolution in the courts per the provisions in the Civil Court Act, N.Y.C.P.L.R. §§ 7101-7411, 731, 732(a), 733, 734, 735, 736, 738, 740-7416 (McKinney 2013).
The practice of requiring that the parties submit all their disputes to the Rent Stabilization Association of Greater New York for arbitration and/or mediation in lieu of litigation has been shown to have mixed results. Some studies have indicated that the process did not produce higher rates of settlement, and a positive experience with the process does not seem to preclude a litigated outcome (Lucchetti v. New York City Housing Authority, 84 A.D.3d 655, 923 N.Y.S.2d 796 (1st Dep’t 2011)). The lack of a signed lease agreement may play a role when disputes are submitted for arbitration or mediation.
On occasion, the landlord will decline to accept rent from the tenant submitting it with a letter outlining the reasons as a protest or request for repairs. Where this occurs, the landlord must clearly inform the tenant of its rejection of the rent payment, and give the tenant a notice of nonpayment stating that pursuant to NYC Admin. Code § 27-2115.8, the rent will not be received for a period longer than six months (Chinese Staff and Workers Ass’n v. Bellaphone Inc., 74 Misc. 2d 454, 455, 342 N.Y.S.2d 763 (Civil Ct., N.Y. Cty 1973), aff’d 47 A.D.2d 943, 365 N.Y.S.2d 1014 (1st Dep’t 1977) (where the tenant did not observe the requirements of NYC Admin. Code § 27-2115.8, the court awarded possession to the landlord).
Intimidation or coercion by landlord to pay rent without repairs requested is also actionable (Kidder, Peabody & Co. v. Joseph, 106 Misc. 2d 1017, 432 N.Y.S.2d 135 (Sup. Ct., Bronx Cty1980)).
Rent is due on the first day of each month, but landlords sometimes close on a holiday or another reason, then change rent due dates to reflect the date that they actually received the rent payment. The charge for past rent due which exceeds one month’s rent may not be collected unless the tenant agrees in writing (Rennels v. Squires, 46 Misc. 2d 953, 261 N.Y.S.2d 691 (Sup. Ct., Queens Cty 1965), aff’d 29 A.D.2d 482, 286 N.Y.S.2d 8 (2d Dep’t 1968)).

Tenant and Landlord Protections under the Law

Legal protections are available for both landlords and tenants in lease situations that are not formalized with a written agreement. For tenants, the law implies a duty of habitability – that is, the landlord is obligated to make and keep the rental premises habitable.
Thus, for example, if you rent an apartment without a formal lease, and the landlord fails to provide hot water or adequate heat, you may have the right to sue the landlord for damages and/or declaratory relief.
The extent of this responsibility on the part of landlords varies somewhat from state to state – but most states do require landlords at least to provide basic utilities to tenants (water, heat, electricity), as well as to take care of a limited set of emergency maintenance tasks. In some state courts, there are strict rules about what must be done. In others, the duties of a landlord are more flexible and the scope of what is required depends on principles of fairness and equity in situations involving specific tenants.
Therefore , just because you don’t have a signed lease doesn’t mean you’re limited in your options if your landlord isn’t providing a safe and comfortable place to live.
On the other hand, landlords are protected by a variety of laws when it comes to evicting tenants. When a tenant breaks a lease or is simply not paying the rent, the landlord can usually evict the tenant at any time.
Eviction is a two-step process. First the landlord must demand that the tenant vacate the property. In general, this demand can take the form of a letter, but some states require landlords to file a legal action or post notice of the demand on the property itself. Next, the landlord must file an eviction lawsuit with the court if the tenant fails to move out within the time given in the demand.
There are a few exceptions to the above, however, such as the federal Violence Against Women Act, which, regardless of whether you have a written lease, protects tenants from discrimination by landlords who may wish to evict them for complaining about criminal actions such as domestic violence, sexual assault, or stalking.

Considerations for Both Tenants and Landlords

While renting a home or apartment without a signed lease entitles the tenant to all rights and remedies under the RTA, it can be a source of major frustration for both parties. Following these simple guidelines can help tenants and landlords save time and money by minimizing stress and the likelihood of disputes.
For Tenants:

Request a written receipt for each payment you make to the landlord. Be sure to include the date the payment is made, the amount and indicate what it is for (e.g. rent, utilities).
Keep a dated log of any messages you send to your landlord (e.g. voicemails, emails, text messages) as well as any messages your landlord sends to you (e.g. voicemails, emails, text messages) as evidence in case you go to the LTB.
Put all of your requests in writing. If your landlord doesn’t respond to your requests within a reasonable time, go to the LTB.
Give 24 hours’ written notice when asking your landlord to do repairs. Always include your contact information and request confirmation that the turnaround time will be reasonable (typically within 14 days).
Don’t rely on verbal agreements with your landlord. Even if it is verbally represented as being only for a short period of time, any price increase or change to your rental terms must be approved by the LTB.

For Landlords:

Save a copy of the messages you have sent the tenant and those that the tenant have sent you (e.g. voicemails, text messages, emails). For voicemails and text messages, consider using another phone to record or document the contents.
Ask the tenant to put all requests in writing. If the tenant currently chooses only to contact you verbally, send the tenant a written request asking for this information in the future.
Make sure that you have the correct contact information for the tenant (e.g. phone number, email address) and use this information to confirm any verbal agreements.
Give the tenant 24 hours’ written notice when you intend to attend the rental unit to do repairs. Edit the standard LTB form to fit your needs so that you have it handy for future use.
Every time you allow the tenant to make a change to the rental terms in your absence, be sure to submit that change for LTB approval.

How to Make a Verbal Agreement Formal

Conversely, these parties may wish to formalize their relationship with a written agreement. For a tenant, formalizing this relationship will help protect them against landlord claims. When a conflict arises about the terms of the tenancy, getting everything in writing reduces the risk that the parties will have to litigate in court, an expensive and time-consuming process. For a landlord, formalizing the tenancy creates a paper trail proving the validity of the lease agreement should a dispute arise. Additionally, if the property in question is rent controlled, a written agreement adds additional protection .
In general, these steps are sufficient to meet the requirements of New York’s Statute of Frauds:

The parties verbally agree on the rental agreement’s terms
The tenant pays at least one month’s rent in advance
A person other than the tenant writes the terms of the lease (not a necessity but highly recommended)
This person signs the document
The tenant then accepts this document by paying the first month’s rent (not a necessity but highly recommended)

Lastly, we want to reiterate the importance of having this agreement in writing. Not only can it help mitigate issues during lease terminations or disagreements, it can also save both parties money in the long term.