Renters Bill of Rights: Clear and Fair Leases
August 8, 2023
The Biden Administration’s Blueprint for a Renters Bill of Rights (Blueprint) was introduced on January 25, 2023 to drive action at the federal, state, and local levels to strengthen tenant protections and housing affordability. One of the principles outlined in the Blueprint is that renters should have clear and fair leases, with defined rental terms, rights, and responsibilities written in simple and clear language.
This is the second article in a series of Law and Policy Insights on the Biden Administration’s Blueprint for a Renters Bill of Rights (Blueprint), which was introduced on January 25, 2023 to drive action at the federal, state, and local levels designed to strengthen tenant protections and housing affordability. This article focuses on the second principle outlined in the Blueprint.
Renters are currently facing a housing shortage, as population growth has exceeded the growth in housing supply for the past 40 years. When housing supply is limited, landlords gain leverage in deciding the terms that will govern the landlord-tenant relationship because tenants have fewer options that meet their geographic, space, and budgetary requirements. Additionally, many renters do not read their lease because they believe that it is written in legal language they will not understand and that the terms are non-negotiable.
The second principle of the Biden Administration’s Blueprint is that renters should have clear and fair leases. The Blueprint advocates for leases that have defined rental terms, rights, and responsibilities written in simple and clear language. Leases should have transparent policies regarding security deposits and advance notice before entry and other actions relating to the unit. Leases should not include oppressive terms like mandatory arbitration clauses, unenforceable terms, hidden or illegal fees, false representations, or any other deceptive practices. The Blueprint also advocates for a plain language briefing to be available during the leasing process to ensure that tenants understand the terms of their lease.
This principle is important because landlords have superior bargaining power over renters when setting lease terms. Even when renters do read leases, they often do not understand their rights. One study found that people are unlikely to question whether lease terms are enforceable and are less likely to initiate legal proceedings against their landlord when unenforceable terms are present. This means that tenants are likely to abide by provisions that are unlawful due to lack of understanding or fear of eviction or retaliation, and then do not receive the benefit of laws put in place to protect tenants.
Two studies show that this uneven bargaining power disadvantages renters because landlords often include unenforceable, oppressive, and misleading terms in leases. A 2017 study analyzed 70 leases from the Greater Boston Area and found that 73 percent of leases contained unenforceable clauses and 93 percent of leases contained terms that selectively disclosed the law in ways that would mislead tenants into foregoing legal rights and remedies.
Another study found that, of approximately 135,000 unsubsidized and private leases from eviction proceedings in Philadelphia between 2005 and 2019, approximately 60 percent of leases contained unenforceable clauses agreeing not to hold the landlord liable for negligence, and 67 percent of leases contained an oppressive provision waiving the notice period typically required to bring an eviction proceeding. Landlords may not always be maliciously subverting the law, as the study also found that the inclusion of these terms has increased over the last 20 years, likely due to the growing use of lease templates available online. The study found that at least 35 percent of leases were shared leases from such websites, although that number is likely low because landlords may use language from lease templates without including any identifiers linking them to those websites or only take partial language or ideas from such lease templates.
The federal government already embodies this principle of clear and fair leases by setting required and prohibited lease provisions for those in the Public Housing Program under the Department of Housing and Urban Development (HUD). The Department of Defense also sets model leases based on its tenant bill of rights for military housing tenants under its Military Housing Privatization Initiative. To further implement this principle, the Department of Agriculture is developing resources like a model lease, a tenant grievance FAQ, and a Tenant Rights and Responsibility brochure to align itself with HUD’s policies and clarify tenant’s rights and responsibilities under its rural multifamily housing rental programs.
States and local jurisdictions can implement this principle in many ways. Some states mandate plain language in leases. For example, New York requires leases to be written “in a clear and coherent manner using words with common and everyday meanings,” while Connecticut’s statute sets out a plain language test that defines what it means to be written in plain language, including specifics on choice of words used, how parties are referred to, the number of words in each sentence, and the readability of the document.
States and local jurisdictions can also adopt their own model leases with clear and fair terms, which could help to reduce the inclusion of unenforceable, oppressive, and misleading terms caused by landlords adopting lease templates found online. Jurisdictions can also mandate or prohibit certain lease terms to require fair leases, but as exemplified by the studies in Boston and Philadelphia, such laws will only be successful if they are enforced and if tenants understand their rights. States should then focus on enforcing such laws and educating tenants on their rights.
The next article in this series of Policy Insights will focus on how states can adopt the third principle of the Blueprint (education, enforcement, and enhancement of rights) to further protect tenants.
This post written by Allyson Wade, student attorney (Class of 2023, Francis King Carey School of Law), and reviewed by Kathleen Hoke, director, Network for Public Health Law – Eastern Region and professor and director, Legal Resource Center for Public Health Policy, University of Maryland Francis King Carey School of Law.
The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document do not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.
Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not represent the views of (and should not be attributed to) RWJF.