Lease Amendment and Lease Addendum
Lease agreements protect the interests of landlord and tenant by defining duties and responsibilities required during the term of tenancy. Changes, additions, and deletions can be made to the lease agreement as warranted by business necessity and legal compliances. The type of document required to effect the change, addition, or deletion may depend upon its applicability to the need for modification or clarification.
Lease Amendment
When modifications to the lease agreement are needed, a landlord could rewrite the lease agreement or, as an easier and a more efficient way to change certain provisions in the lease, a landlord could execute a lease amendment. Utilizing a lease amendment to make changes to the lease is a more common practice than issuing separate additional documents as lease addenda. However if multiple significant changes are necessary, a landlord may want to consider substituting a new lease agreement for the old lease. If this is done, a landlord should mark the old lease as cancelled by mutual agreement. All parties to the original lease must acknowledge the cancellation and sign and date the replacement lease. The new lease is effective on the date the old lease is cancelled.
However, by utilizing a lease amendment, landlord and tenant can change lease provisions by adding, deleting, or changing existing clauses in the lease without having to execute a new lease agreement. All parties to the lease agreement must signify their consent by their signature to changes documented in the lease amendment in order for the modifications to become valid and effective. A landlord cannot change a lease agreement without the knowledge and consent of the tenant. Any lease terms and conditions in the original lease that are not modified remain in effect.
It is preferable to use a written lease amendment to document lease changes. While an oral agreement could be reached regarding acceptance of changes, to prevent future problems by either party misunderstanding or disputing changes, a written amendment should be prepared for signature. Be aware of the applicable Statute of Fraud requirements by law that may necessitate a written amendment to the lease agreement.
A lease amendment may be used to change lease clauses such as:
- Term of lease,
- Options for lease renewal,
- Termination of lease,
- Rents,
- Material lease defaults,
- Adding a cosigner,
- Assignment of maintenance duties,
- Subletting or assignment,
- Roommates policies,
- Guests policies.
As long as all parties to the original lease agreement consent to the changes, almost any lease provision may be modified by utilizing a lease amendment. Many states do not address how lease amendments should be drawn; place limitations on the number of modifications that can be made to a lease; or restrict what content can be changed. A landlord will need to research applicable laws to determine legal compliances. In general a lease amendment will need to follow applicable laws that govern the original lease agreement. It is advisable to seek legal counsel for guidance as required for business necessity to ensure compliances.
A lease agreement when signed by landlord and tenant is a legally binding contract. The lease cannot be altered except by written agreement acknowledged and signed by all parties to the original lease agreement. The lease amendment becomes a part of the original lease and remains in effect until the lease is terminated or the lease is otherwise renegotiated.
A landlord in creating a lease amendment should ensure the language in the amendment is clear in scope and intent and specific in detail to describe the change, addition, or deletion of lease provisions necessary for business purpose. The format of the lease agreement is not as important as the content of the amendment. As long as the amendment is legally compliant, and clearly understood by the parties to the lease, it could be drafted in letter format or follow the format of the lease agreement.
Lease Addendum
While an amendment makes changes to an original lease agreement, a lease addendum adds additional documents to the original lease agreement.
Lease addenda are utilized by landlords to add additional documents as separate, referenced attachments to the original lease agreement. The purpose of lease addenda is to provide additional, supplemental information that either the original lease was silent on the issue, did not cover failed to provide clarity needed on the issue, or as required for legal compliances, such as disclosures under state statutes or environmental disclosures by federal, state laws.
An addendum becomes legally binding as part of the original lease agreement only after it has been accepted by all parties. The addendum does not replace the original lease agreement.
Many landlords have learned from rental experiences to include as much detail and instruction as possible. Therefore those landlords have drafted a lease agreement adequate in detail and scope to cover most common rental issues, identify potential rental issues, remedies for lease violations and specific information relevant to their individual properties and property management. If a lease agreement is inadequate in its protections for the current circumstances or the lease must now comply with external requirements outside of the landlord’s control, a landlord can add the necessary protections for his business interests by drafting lease addenda as attachments to his lease agreement.
Lease addenda may follow the format of the lease agreement with the basic elements of date, property address, named parties to the lease, and descriptive information regarding the reason for the document to be attached to the lease. The addendum should be specific to a single rental issue, usually with the topic noted in the document title, and referenced as an attachment to the original lease agreement.
Common lease addenda include landlord policies for move-in inspection and checklist, pets, guest stays, use of rental premises, lock and key practices, parking, card/access code to property amenities (e.g., pool and fitness center), extended tenant absence from rental unit, landscaping duties, and other landlord rules and regulations detailed for tenant instruction and compliance.
Some addenda must be made part of a lease agreement for disclosure requirements by applicable federal, state, and local laws. Disclosure may be for purposes of environmental, health, and safety reasons such as lead hazard information, mold, asbestos, radon, or bedbugs.
If a landlord has incorporated required disclosures and notice requirements, in the manner specified by law into the original lease agreement, an addendum would not be needed.
However to provide clarity and detail to the tenant for important disclosures and regulations, it may be the better practice to present that information as single topic lease addendum.
A lease addendum becomes effective only after all parties to the lease agreement have signed their acceptance. If a landlord presents a lease addendum to a tenant already in residence (after original lease is in effect) a tenant is not obligated to accept the lease addendum. If the issue as presented in the addendum is deemed a business necessity, landlord and tenant may need to resolve the issue through appropriate measures for remediation.
It is somewhat likely that during the current public health pandemic that a landlord may need to modify his lease provisions for certain issues as the public health and safety guidelines and directives change in response to the impact of COVID-19. Landlords may need to reexamine current rental policies and adapt to changing conditions and requirements. It may require changing policy and practices for issues such as rents, particularly past due rents and repayment plans, use and return of security deposits, guest stays, landlord right of entry, maintenance, lease termination and renewals, and other lease terms and conditions applicable to tenant health and safety and community health guidelines.