 |
 |
 |
 |
|
| Search | Legal Library | Helpful Organizations | Maine Courts |
Lease or Written Rental Agreement?
What kind of agreement should I have with my tenant?
What is a written "rental agreement"? How is it different from a lease?
What are the pros and cons of opting for a lease?
If I don’t have a written lease, what legal relationship do I have with my tenant?
Without a lease, how can I establish rules for my tenant to follow?
What happens if my tenant violates our written agreement?
What kind of agreement should I have with my tenant?
There are basically three kinds of agreements:
- Written Lease
- Written Rental Agreement
- Oral Rental Agreement
Each type of agreement has its own legal implications.
We advise that you use some form of written agreement - either a lease or a rental agreement. This Sample Agreement provides a model for both types of agreements - depending on which parts of it you elect to use. Learn more about the differences below.
An oral agreement with your tenant is also a valid, enforceable agreement. But, if you choose this route, you're more likely to forget to include important terms. Also, if you and your tenant run into difficulties late on, you may have different memories about the terms of your agreement. For all of these reasons, an oral agreement is not the best route to take.
What is a lease?
A lease lists the names of the home provider and the tenant, the address, the areas of the home to be shared, the length of the lease, and the day the rent is due. Most leases also contain much more than this.
The lease sets out the rules you and your tenant agree to follow. Include on your lease any issues that you think you need to agree upon ahead of time. We have tried to anticipate many common issues in our Sample Agreement.
A typical lease will also say whether the home provider can evict a tenant before the lease ends, what reasons he must have, and what kind of notice he must give. Again, the legal rights of each person in the event of any kind of future conflict will usually be governed by the lease terms. In other words, what did you both agree to before the conflict arose?
It is important that both parties read and understand the lease before signing!
What is a written "rental agreement"? How is it different from a lease?
This type of agreement is similar to a lease but, typically, does not include a specific rental term. For example, a lease typcially gives a tenant the expectation of a six month, one year or two year term. If your choice is to just rent "month to month" - not for a specific term - then you would draw up a "rental agreement." Otherwise, a written rental agreement provides the same benefits as a lease - to set forth ahead of time the specifics of what you're both agreeing to. Again, our Sample Agreement includes model language for a written rental agreement.
Same advice here: Both parties should read and understand the lease before signing!
Read more below about the legal implications of a lease vs. a rental agreement.
What are the pros and cons of opting for a lease?
Again, a lease is usually for a specific time period. Many common leases are for a year. Although there are provisions in leases, usually, to allow you to terminate the agreement if your tenant violates the lease, it is far more difficult to end a homesharing arrangement in the middle of a lease for reasons that don’t rise to the level of a lease violation. For example, if you just don’t want to continue with the homeshare, or if you feel uncomfortable with your tenant but he or she has done nothing to violate the lease, you may find it difficult or impossible to end the arrangement until after the lease expires. Of course, if you know in advance that you want a particular tenant to commit for a longer period of time, a lease might be right for you.
Drafting a proper lease, with all of the appropriate legal requirements, is really something that should be done by an attorney. This is especially so in a homesharing arrangement because most standard leases don’t have terms that specifically apply to the unique aspects of homesharing – such as how to deal with sharing chores, storage space, meal preparation, and visitors. But if you do want to try your hand at drafting a lease of your own, we provide this sample as a starting point: Sample Agreement. The Maine Attorney General’s sample lease is also worth taking a look at.
If I don’t have a written lease, what legal relationship do I have with my tenant?
If you don’t have a written lease for a specific term, you and your tenant have a "month-to-month tenancy." This is true whether your rental agreement is oral or written. This is a perfectly legal and binding contractual relationship. You can still establish rules that each of you must follow (see next section). Generally, certain very basic rules always apply in a month-to-month tenancy. For example, your tenant must pay you for the right to stay in your home, and you must give your tenant the right to enjoy and use your home without unreasonable interference. The most important aspect in a month-to-month tenancy is the right for either one of you to terminate the tenancy upon 30 days’ written notice. (You need only give 7 days’ written notice to end the tenancy if your tenant doesn’t pay his or her rent.) These rights to terminate upon fairly short notice are what give parties to a month-to-month tenancy more freedom than those in a lease that binds the parties for a longer period of time.
Without a lease, how can I establish rules for my tenant to follow?
Even in a month-to-month tenancy, without a lease, you can establish rules that your tenant must follow. This is highly recommended. You should establish with your tenant rules that cover every anticipated issue that may come up. Your written signed agreement with your tenant can address issues such as:
- who does which chores,
- whether you share food,
- who takes which storage space,
- whether you can have visitors, and
- many other very important concerns that inevitably come up when you share your home with someone.
We provide a Sample Agreement to share a home. Please use our sample agreement, but feel free to modify it as you see fit, to cover your and your tenant's own unique circumstances.
What happens if my tenant violates our written agreement?
If you don’t have a written lease with its own termination provisions, but instead you opt to have a month-to-month tenancy with a written agreement, you can terminate the tenancy upon 30 days’ written notice to your tenant. In certain other instances – such as your tenants’ non-payment of rent – you can terminate the agreement upon 7 days’ notice. This means that, if your tenant does anything that makes you uncomfortable, or if he or she violates any agreement that you have, you may elect to give a 30 days’ notice to terminate the tenancy. In a month-to-month tenancy, you don’t need to prove or even specify whether your tenant violated the agreement in a 30 day notice.
If you have a lease, you may terminate the tenancy in whatever way, with whatever notice, that the lease provides.
Note: A Maine statute, effective September 2011, clarifies that either the landlord or the tenant can choose to end the lease if the other party has "materially breached" the lease. This requires a written 7-day notice, served in-hand, or, after 3 good faith efforts, mailed by first class mail, with a copy left at the other party's home. Read more about landlord's duty to seek a court order before evicting a tenant.
Remember: You may come to the conclusion that it is time for you to end your homesharing arrangement with your tenant. So, you may decide to give your tenant notice to terminate. After that notice expires, you must still follow all of the next steps the law requires for you to legally evict a tenant in Maine. This means that you must next bring a complaint for eviction in the proper court, served in the proper way upon your tenant. We hope, of course, that it does not come to this. If it does, we strongly encourage you to consult a lawyer. The legal process to evict is a difficult and confusing one and if you make a mistake, it may cost you valuable time and money.
Revised April 2013
