Following are instructions for completing Nolo’s Coronavirus-Related Amendment of Residential Lease.

You can always amend a residential lease if both landlord and tenant agree to the new terms. As the novel coronavirus sweeps the country, making it difficult for laid-off tenants to pay the rent, landlords and tenants are facing tough questions: Should the landlord forgive or postpone the rent because tenants can’t work and cannot afford to pay? How should landlords handle local or statewide moratoria on evictions for nonpayment? What other terms in the lease, such as restrictions on adding occupants, should be addressed?

Why Can’t Nolo Offer a “Coronavirus Amendment?”

Because each lease situation is unique, we can’t offer a finished set of amendments. But by using this Nolo form and considering these instructions, you can systematically go through your lease, consider possible changes, and record the ones you choose on this form.

Importantly, because the form will become part of your lease, any terms or conditions that you do not change will remain intact. In other words, you’ll be spared the hassle of an argument that additional clauses were changed or new ones added. Having your agreed-upon changes in writing and firmly attached to your lease should forestall such future complications.

How Should You Negotiate?

In normal times, landlords are naturally hesitant to forgive or even postpone rent nonpayment, fearful that a tenant who can’t come up with the rent is headed for failure; why postpone the inevitable? Especially when the space is attractive and the market is hot, the landlord might be anxious to move on to a more solvent renter.

But these coronavirus times are not normal. Tenants everywhere are hurting, and most landlords can’t count on eager applicants to take over space that the current tenant cannot afford. Landlords who can work with their tenants might wisely conclude that it’s worth it to compromise, if doing so enables the tenant to stay above water and, hopefully, resume paying rent once the tenant’s ability to earn a living has returned.

In short, even if the law allows you to evict for nonpayment, emptying the space just puts you at square one, trying to show the rental in the middle of an outbreak. Beginning anew with an untested tenant might, in the end, be more hassle and riskier than propping-up an otherwise steady renter.

What Do I Need to Know About Eviction Moratoriums?

An eviction moratorium is a law that puts evictions on hold. It affects your ability to terminate for nonpayment. That’s because even if your local or state moratorium doesn’t specifically prohibit terminations for nonpayment, delivering a termination notice will do you no good if the tenant doesn’t move and you can’t take the next step (filing an unlawful detainer lawsuit).

If you are in a city or state that has instituted an eviction moratorium, be sure that you learn its terms, and write your rent clause amendment accordingly.  For example, the temporary moratorium on evictions for unpaid rent in Los Angeles states that tenants will have up to twelve months after the local state of emergency is over to pay the rent. Your amendment could look like the ones under the “Do You Want to Include a Rent Postponement Clause?” question below.

To learn whether a moratorium applies to you and to learn its specifics, go to the webpage maintained by the National Conference of State Legislatures, State Action on Coronavirus (COVID-19).  To find orders from governors, type your state’s name, followed by “eviction moratorium” into your search engine.

Clauses You Might Consider Changing

Here is a short list of lease clauses that you might want to consider changing. In each clause, be sure to specify how long the amended version will last.

Do You Want Amend the Rent Clause?

Decreasing the rent or postponing it altogether is the most common change that landlords and tenants will make (but see “Eviction Moratoriums,” above).

Be sure to describe:

• Whether the rent will go down to a specified figure, or by a percent
• Whether the landlord is forgiving the rent or postponing it
• Which month the deferred or lowered rent applies to (you can specify one month, and make additional amendments if you want to add additional months)
• The date the original rent will be reinstated, and
• If the rent has been postponed, at what point the unpaid rent will be paid back, and whether a late fee, if already in the lease, will apply.

Landlords might want to condition the rent reduction or postponement on the continued inability of the tenants to pay the rent. For example, the agreement could state that if tenants’ financial conditions change—if they receive money from a government entity, charity, or any other source during the deferral period—the tenants will pay all of those sums towards the back rent. If you are subject to an eviction moratorium, such a condition might not be allowable. At the least, however, you can probably require tenants to notify you if they go back to work, and the amendment contains this provision.

Sample Rent Postponement Clauses

Installment Payments

Clause X, Rent. Tenant’s rent for May 2020 is due on April 1 and is $1,500. Tenant agrees to pay the May rent as follows:

First Payment. $500 on the date that is no earlier than 360 calendar days after the expiration of any local or state coronavirus-related declaration of emergency is lifted.

Second Payment. $500 on or before 30 days after the date that has been calculated for the First Payment.

Third Payment. $500 on or before the date that has been calculated for the Second Payment.

Balloon Payment

 

Clause X, Rent. Tenant’s rent for May 2020 is due on May 1 and is $1,500. Tenant agrees to pay the April rent as follows:

$1,500 on or before no earlier than 360 days after the expiration of any local or state coronavirus-related state of emergency.

Do You Want to Amend the Premises Clause?

If you have smaller units available that rent for less, you might consider allowing the tenant to move into one of them. Adjust the description of the premises accordingly. You’ll need to heed state security deposit legal limits: If the tenant is paying a lower rent, be sure to adjust the security deposit, too (apply the balance to any unpaid rent).

Do You Want to Change the Names of Tenants?

In order to care for school-age children who are home, to care for an ill family member or friend, to offer housing to someone who must move because of an ill roommate, or to house someone who has had to leave a rental because of nonpayment , tenants might want to add residents. However, you do not want temporary residents to gain the status of full-fledged tenants. For this reason, if your lease has a clause that addresses limits on guests, you should describe them there (see below). If you do not have a specific guest clause, you can write one on the amendment, as explained below. In short, leave the “names of tenants” clause alone.

Do You Want to Change the Security Deposit?

Normally, landlords dip into the deposit to cover unpaid rent. You might want to do so for the first or second month of unpaid rent, but you don’t have to. Understand that if you deplete the deposit to cover unpaid rent, you won’t have it available to cover unpaid rent or damage when the tenant leaves.

If you decide to use the deposit now, you could explain that the tenant must replenish the deposit at the same time the back rent is paid, like this: “Clause X, Security Deposit. Landlord will use Tenant’s security deposit ($2,000) to cover the rent for May. Tenant agrees to replenish the deposit in full by June 15, 2020.” Be advised that a local or state eviction moratorium law might prevent you from basing a termination and eviction on the grounds that the tenant failed to replenish the deposit you used to cover back rent.

Do You Want to Waive Late Charges?

Most landlords will forgo these charges in this time of coronavirus-related rent nonpayment. Your amendment might say, “Clause X Late Charges. Landlord will not impose late rent charges until six months after the state of emergency has been lifted by [the governor].”

Assigning and Subletting

This clause limits the tenant’s ability to sublet (turn over the space, or part of it, to someone else temporarily) or assign (give the space to someone else permanently). Leave these restrictions in place. Address any temporary residents in the “guests” clause, as shown below.

Do You Want to Amend the Pets Clause?

Your tenant might ask you to accommodate not only a temporary extra resident, but that person’s pet, too. If your lease prohibits pets, or allows only a specified pet, you’ll need to address this request. If you can allow the pet (which might not be possible when a multi-tenant building is pet-free), specify in your amendment the name and type of pet, and explain that you’re allowing its presence only for as long as its temporary owner lives as a guest on the premises. Your amendment could look like this: “Clause X, Pets. Tenant’s guest may bring his dog, a 4-year old neutered Golden Retriever named Max, but only if Guest abides by the pet rules contained in the House Rules, a copy of which is attached to Tenant’s lease. Landlord reserves the right to revoke this permission at any time.”

Keep in mind that if the animal is a service or comfort animal owned by a person with a disability, you won’t be able to say no to the animal’s presence unless you can show that having it on the property would pose a safety or health threat to other tenants or employees.

Do You Want to Amend Limits on Guest Stays, or Add a Guest Clause?

Tenants might ask to bring in additional occupants, in order to care for someone who is ill, to take care of children, or simply to provide shelter for someone who has lost housing as a result of a job loss or income reduction, or who has to move so that an ill person can self-isolate. While you will surely be sympathetic, you might also be concerned about having that person (whom you haven’t screened) gaining the status of a tenant.

You can accommodate your tenant’s wishes and still protect your right to screen tenants. If your lease has a guest clause, you can amend it (if the lease lacks one, you can add one now). The amendment or new clause should name the new person or persons, specifically described as a temporary guest, and place a limit on that person’s right to live there. Your amendment or new clause might read something like this: “Clause X, Limits on Guest Stays. Landlord agrees to allow John Jones to stay on the premises as a guest for up to two weeks after the governor has declared an end to the coronavirus-related state of emergency.” To make it very clear that John Jones is not going to become a tenant, your amendment will print with a signature line for a guest, in which John Jones acknowledges his status as a guest, not a tenant.