Q-My parents are elderly and live in the suburbs. My stepfather had to file for bankruptcy due to health problems. The landlord put a rider on their new lease with what I think are illegal provisions. My parents cannot afford to move, but they are afraid to sign this lease. They have always paid their rent on time, but they are afraid their landlord will evict them if he finds out about the bankruptcy. Can you please tell me if certain provisions the landlord put in the rider are legal?
A-There are two questions here: Are the clauses legal and is a court likely to enforce them? While clauses may be legal, a court may refuse to enforce them because they are unreasonable. I`ll address each provision in this landlord`s rider.
– One clause states that if a tenant files for bankruptcy, the landlord has the option of terminating the tenancy on 30 days` written notice.
This clause is probably illegal and unenforceable. Once a bankruptcy case is filed, anyone attempting to deal with the obligations of the debtor must proceed through the bankruptcy court. No action can be taken against a bankrupt party just because he or she has filed for bankruptcy, and if any action is in progress, it must cease immediately. Failure to stop action against a person filing for bankruptcy is considered contempt of the federal bankruptcy court.
Your stepfather probably has the right to reaffirm his obligations under the lease and/or remain current on his rent payments. So long as he does, and makes all rent payments on time, the landlord will be required to keep him as a tenant.
However, he should consult his bankruptcy attorney to clarify his tenancy options. This attorney also can attempt to protect him against any improper actions by the landlord.
– Another clause states that if the apartment is occupied for more than four days by persons other than those listed in the lease documents, there will be a charge of $100 per person per month.
First of all, this provision is not clear. Is occupancy permitted for four days per week, per month or per year? Such ambiguity could make the clause unenforceable. Both parties to the lease must have the same
understanding of what is meant. If the meaning is unclear, a judge is likely to interpret the clause in favor of the tenant rather than the landlord who drafted the provision.
Another consideration is whether a court is likely to enforce the provision. While the clause is not strictly illegal, the judge could question whether it is unconscionable. In other words, is it too severe and unreasonable to be enforced?
A landlord has the right to limit the occupancy of the apartment, but he also must realize that other persons may occupy the apartment on a temporary basis. A court may find that a four-day time limit is too restrictive.
Also, the judge could find that the penalty is too severe for the offense. If it unlikely that a charge of $100 per month per person is related to the landlord`s actual cost for the additional occupants.
– A third clause states that if rent is not received by 4 p.m. on the first day of the month, it will be considered late and a late charge of $25 will be assessed. If the rent is not received by the 10th day of the month, there will be an additional $50 penalty, and there will be a charge of $10 for each day after that.
This clause may or may not be enforceable. A $25 penalty might be found enforceable, although a judge might find that a little more leeway should be given before imposing the penalty. The additional $50 penalty might be enforced, depending upon the facts surrounding the tenancy, such as the number of times payment has been late and the amount of rent being charged for the apartment.
It is possible that the daily fine will not be enforced by a court. This sort of penalty mounts up quickly and sometimes the penalty winds up equalling or surpassing the amount of the rent. For this reason, courts may well find the daily penalty is unconscionable and, therefore, unenforceable.
But the most important consideration seems to be your parents` fears. You state that your parents are afraid of the landlord, afraid of what the landlord might find out about the bankruptcy, and afraid of not signing the rider. It sounds like they do not enjoy living in the apartment. Why don`t you consider assisting your parents in finding a new apartment? They should not have to live in fear.
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Robert A. Boron, a Chicago attorney who specializes in leasing matters, writes about landlord and tenant issues for the Tribune. Questions to him can be addressed to Rental Q&A, Your Place section, Chicago Tribune, 435 N. Michigan Ave., Chicago, Ill. 60611. Sorry, but he cannot make personal replies.
