Prohibited Lease Provisions

By Mark Zinman | Zona Law

In my practice, I have been confronted with clients who want to include provisions in their lease that are prohibited by law. Usually, they are trying to get a tenant to waive some defects in the property, improperly make the tenant maintain the property, or have the tenant waive their rights regarding evictions. Some clients do this because they are unaware that such provisions are unenforceable. Other clients do so, with the knowledge that what they are doing is prohibited. The former are quick to change the lease once we have discussed what is legal. The later client continues to use the prohibited provisions but does so at their own risk.

The most common prohibited lease provision I see is that the tenant accepts any known or unknown defects and is liable to maintain the property and fix any issues that may arise. This raises several concerns as tenants cannot waive hidden defects of which they are not aware. Just to be clear, if a tenant is aware of a defect and that it won’t be fixed, they can knowingly waive such claims. For example, if a home has an old, broken window air conditioner, the lease can disclose this, and that the landlord is not fixing it. However, if this is not disclosed, it is presumed that the air conditioning works that the landlord will maintain it. 

Additionally, a landlord cannot shift significant maintenance responsibilities to the tenant, such as replacing an air conditioning unit. A.R.S. § 33-1324 provides that a landlord is to keep a property fit and habitable. Under subsection C, a landlord and tenant in a single-family home can agree, for consideration, that the tenant performs certain enumerated duties of the landlord. This is generally construed narrowly, to permit the tenant to maintain such things as a pool, landscaping, and pest control, but not to replace an air conditioning unit.

These types of lease provisions are addressed in two statutes in the Arizona Residential Landlord and Tenant Act (the “Act”). First, A.R.S. § 33-1312 provides that if a court finds a lease provision “unconscionable” the court may refuse to enforce the entire agreement or just a portion of the agreement. While unconscionable is not defined in the Act, it has been defined by courts in other states as: “an act or conduct which is willful and is so harsh and unjust as would be condemned or considered to be wrongful and would be shocking to the conscience of honest and fair-minded persons.” Thus, a court has the power to simply strike provisions it finds unconscionable. 

Second, A.R.S. § 33-1315 specifically addresses prohibited provisions in rental agreements. Among other prohibitions, it says that a landlord cannot use a lease provision that requires the tenant to “waive or to forego rights or remedies under this chapter.” For example, since the Arizona Residential Landlord and Tenant Act requires that a tenant be served with a 5-day notice before an eviction is filed for non-payment of rent, a lease cannot have a provision permitting a landlord to simply lock out a tenant who fails to pay rent. The statute then provides a potentially harsh penalty for violations: “If a landlord deliberately uses a rental agreement containing provisions known by the landlord to be prohibited, the tenant may recover actual damages sustained by the tenant and not more than two months' periodic rent.” The use of the word may mean it's discretionary, but a judge could penalize a landlord that it believes intentionally uses a prohibited provision. Therefore, I always advise clients to avoid any prohibited provisions.