Q: I have a tenant who is currently under a two-year lease at a condo I own. She recently asked if she could end her lease early and sublet the unit because she wants to move closer to her boyfriend. The lease states "subleasing with owner's written consent." I do not want to sublet, however, due to the length of time left on the lease, which is almost two years. I would like to offer her a buyout option, however, I did not include that in my original lease. I'm wondering if it is legal to amend the lease now. I was going to amend the lease to state that she has to give me a 30-day written notice and pay a 60-day buyout fee. Would this document be legal and hold up in court if she and I both sign it? Also, all of our communication has been through text messaging, so I'm wondering if that form of communication is legal.
A: Leases can be amended while still running, as long as both parties agree to it. Landlords cannot unilaterally raise the rent, change late fees, decrease amenities or change other lease terms while the lease is still running, since tenants did not agree to the changes and the terms weren't in the original lease. Landlords then have to wait until the lease ends to change lease terms, such as increasing rent or late fees.
Your situation is different, since both the landlord and the tenant want to change the lease terms. The best way to handle an amendment to the lease in your situation would be to add a lease addendum, which means both parties agree to amend a certain part of the original lease. Both parties must agree to the change, and sign off on it, for the agreement to be legal. You should draft an addendum page to your lease, including the new terms that both parties are agreeing to. If both of you sign that document, the addendum page usually is considered legal and will hold up in court.
Many landlords and tenants communicate by text messaging or e-mail, and both forms of communication are considered legal if that is how you typically correspond with each other. For your security, though, you should put lease changes and other important items in a written lease addendum that is signed by both parties, so that you can easily provide hard copies if necessary.
Does death cancel lease?
Q: My brother recently died. Does his death cancel the rental agreement on his apartment?
A: If all the adult tenants on the lease with your brother are dead, then the lease may be terminated. A relative or the personal representative of your brother's estate is legally allowed to give a two-month written notice to terminate his lease, regardless of the length of time left on the lease. The written notice may be hand-delivered or mailed to your brother's landlord. For example, if your brother died in November, and you leave the two-month written notice before the end of November, then your brother's lease would be terminated at the end of January, since it needs to be two full months' notice starting at the end of the month you give the notice.
However, if your brother's lease was month to month, and the lease language doesn't mention a notice requirement, then you or the estate need to leave only a one-month written notice to terminate his lease. In this situation, if you give notice during the month of November, then your brother's lease terminates at the end of December.
The landlord has a claim against your brother's estate only, not against you or any of your relatives. If your brother died without assets, then the landlord won't be able to collect any rent owed. If your brother paid a security deposit, and there is still rent owed, then the landlord can use the deposit to cover any past-due rent or other debt owed. The landlord also may withhold some or all of your brother's deposit for any damage to his apartment, excluding ordinary wear and tear.
You should terminate the lease by giving the appropriate notice indicated above. You and the relatives, personal representative or estate executor, if there is one, should go through your brother's personal belongings to clear out the apartment. Most landlords will be sympathetic to your needs and will work with you to make this process run smoothly.
Kelly Klein is a Minneapolis attorney. Participation in this column does not create an attorney/client relationship with Klein. Do not rely on advice in this column for legal opinions. Consult an attorney regarding your particular issues. E-mail renting questions to kklein@kleinpa.com, or write to Kelly Klein c/o Star Tribune, 650 3rd Av. S., Minneapolis, MN 55488. Information provided by readers is not confidential.
