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I am thinking about renting a home when the realestate contract is expired. The homeowner was not able to sell the house. Can we put in the lease agreement that for the length of the lease the owner can not put the house up for sale for the duration of the lease? I live in NY State. Thank you!
You can probably try, but the owner might not agree to that stipulation.
If you're trying now to amend your old lease, probably the owner wouldn't agree unless he was paid for the amendment, etc.
This is one of the good reasons a tenant should. If at all possible, get a signed & notarized lease recorded in deed records, so any prospective buyer of the house will be on notice of your lease-hold interest in the house... then knows that he'll only get a deed subject to your leasehold rights.
It's the law in many states that a lease of 12 months or longer MUST be signed and notarized to be valid, and if it wasn't done, then all the tenant has is MTM rental agreement that might be terminated in any month.
Hello jc:
Any new buyer would be required to honor your lease. So, I don't think you have any worries.
I disagree with John WA above. I've never read a state landlord/tenant law that requires signatures to be notarized. I'll be happy to be proven wrong, though. He just needs to point me to the particular law. If I find it, and it's so, I'll offer my apologies.
excon
Cite, please? Just one state?Quote:
Originally Posted by John WA
Notarized is merely a formal witness to the signing of the paper work, It makes nothing more or less legal, merely proves it was the people who said they were signing,
The issue in leases is often the leasing agent is not the person who will sign the lease for a corporation or the landlord.
While laws change all the time, I know of no place that requires the signing to be. Now certain landlords or companies may.
The laws on leases over 12 months do change in some states but those are over 12 months not 12 months. So if someone is going to do a lease for 24 or 36 months some of the rules differ *** from real estate class last year***
I agree... I'd like John WA to just back up his post with even ONE state law that requires this. I've owned and managed rental properties in MANY states, and have attended training from the National Apartment Association which serves the entire country and have NEVER heard of any such law... or even the suggestion of what he's stating.
As far as stipulating that the property not be put up for sale... I've never heard of that. You could try it... like others pointed out... I don't know that the owner would go for that. And even if they did agree and then later sold the property I'm not sure what recourse you'd have, since the new owners would be required to honor your existing lease, so you'd really have no damages.
If you know that the owners preference is really to sell the house and your preference is to rent a house that's not going to be sold I think I'd just move on and keep looking. Too much potential for butting heads on this.
The main point is that such a clause is unnecessary, because any new buyer would be required to honor the lease. Now someone could purchase the property and then tell you that they will not be renewing your lease and you will need to move once the lease expires, but they would HAVE to honor the terms of the lease.
Nor do I think it necessary to record the lease with the deed. No one is going to buy a house sight unseen. So its highly unlikely that they would no know there is a tenant. EVen if the owner sold it and hid the fact there was a tenant, the buyer would have a cause of action against the seller, but still be required to honor your lease.
P.S. Add me to the list of people looking for John WA to provide proof of his statements.
But as noted you can ask that the home not be sold during the term of the lease and have some penalty if it is, you can ask for anything, that does not mean they will put it inthere, they may just refuse you the lease.
If I were advising the owner of a property I would tell them to never, EVER allow a lease to be recorded. It creates a cloud on title and most title companies will not issue a policy of title insurance until the tenant signs a release of the lease.
State of WA, RCW 19.36.010 clearly states 1 yr or longer lease must be written, signed by LL and NP acknowledged, just as any other RE conveyance doc.
RCW 19.36.010 also cited in Saunders vs. Calloway, 708 P.2d 652, so stating.
Statute of Frauds is formalized by legislation in every state as I recall, for specific purpose of requiring long term contracts (longer than 1 year) and RE conveyance docs to be in writing and signed.
I don't know whether NP Ack is also required by any other states, but it is normally required by Deed Recorder's office before that doc can be recorded.
In fact I'll toss back the gauntlet here... can any one of you show me any state that doesn't require a RE Lease of one year or longer to be in writing?
Or any state that will allow a RE conveyance doc to be recorded sans NP's ack?
Of course there's never any requirement that any RE coveyance be recorded, but that's the one that common sense normally requires the buyer or long term Tenant to comply with.
Those of us with RE rental experience as LL"s know that the residential T rarely knows this or wants a recordable doc, but the commercial T always does.
Hello again, John:Quote:
Originally Posted by excon
As can be seen, my question was about the notarization requirement you spoke of. Below, I have copied the law you cited. I find nothing requiring notarization. Am I missing something?
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Contracts, etc. void unless in writing.
In the following cases, specified in this section, any agreement, contract and promise shall be void, unless such agreement, contract or promise, or some note or memorandum thereof, be in writing, and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized, that is to say: (1) Every agreement that by its terms is not to be performed in one year from the making thereof; (2) every special promise to answer for the debt, default, or misdoings of another person; (3) every agreement, promise or undertaking made upon consideration of marriage, except mutual promises to marry; (4) every special promise made by an executor or administrator to answer damages out of his own estate; (5) an agreement authorizing or employing an agent or broker to sell or purchase real estate for compensation or a commission.
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excon
Where in that language does it require that the document be acknowledged, much less by a notary?Quote:
Originally Posted by John WA
I don't believe anyone here has disagreed with you on that. Most of us are aware of and understand the Statute of Frauds.Quote:
RCW 19.36.010 also cited in Saunders vs. Calloway, 708 P.2d 652, so stating.
Statute of Frauds is formalized by legislation in every state as I recall, for specific purpose of requiring long term contracts (longer than 1 year) and RE conveyance docs to be in writing and signed.
You're mixing 2 things here... no one is saying that an agreement to be performed in more than one year is not required to be in writing and signed. We're questioning why you think every lease that is subject to the Statute of Frauds needs to be notarized. A notarization is required only when the document is to be recorded.Quote:
I don't know whether NP Ack is also required by any other states, but it is normally required by Deed Recorder's office before that doc can be recorded.
No. No one here has said that, either.Quote:
In fact I'll toss back the gauntlet here... can any one of you show me any state that doesn't require a RE Lease of one year or longer to be in writing?
Or any state that will allow a RE conveyance doc to be recorded sans NP's ack?
Best of luck in finding a landlord that will allow the tenant to record the lease.Quote:
Of course there's never any requirement that any RE coveyance be recorded, but that's the one that common sense normally requires the buyer or long term Tenant to comply with.
Hmm... I have some RE rental experience and I've NEVER seen a commercial landlord allow the recording of the lease by any tenant, not even the big boxes.Quote:
Those of us with RE rental experience as LL"s know that the residential T rarely knows this or wants a recordable doc, but the commercial T always does.
I've been a landlord for over 15 years, in multiple states. Managed my own property, as well as managed property for other people. Both residential and commercial (mostly residential), AND have attended hundreds of hours of training on ALL aspects of real estate investing.Quote:
Originally Posted by LisaB4657
Your post is the FIRST I've EVER heard mention of a lease being recorded. It is simply NOT done! As Lisa stated... as a landlord/owner... I would NEVER allow a lease to be recorded on any of my properties. Mainly because it has NOTHING to do with the deed! The presence of a lease on a property in no way affects the transferability of that piece of property in a sale.
JOHN WA... I hope you can understand why we're all questioning you on this stuff. Most everyone on here comes here for the purpose of trying to help people with questions. Everyone I know of has filled out their profile, at least to some extent, explaining how they've come by the knowledge they have about a particular topic. Your profile is blank. I assume from your use of "jargon" and abbreviations (which the average poster probably has no idea what you're talking about, by the way) I'm guessing you want us to assume that you're a lawyer. Great, if you are (or aren't) and have knowledge to share, back it up by citing what your experience and/or expertiese is.
I have to go back and read that WA Stat about once a year because there's so much unbelief that such a LT lease must even be signed.
And just now going back I realize that indeed, there is no NP's Ack required and my assertion otherwise was incorrect.
Alas, perfection once again eludes me.
I am a retired lawyer, having practiced for longer than 20 years so I tend to look at the law before I speak, but sometime dis-remember it.
And I agree that normally as a LL, I would normally not want a T to record, so I'm not going to make the Leae Agreement recordable... which would require the NP's Ack in my State of WA, and in all others so far as I recall.
Thanks for reminder re my profile and I will go back and tend to that.
Hmmm "Clearly states"?? Sorry wrong. The statute you cite refers to contracts NOT specifically leases. While a lease is a contract it's a specialized subset of contracts that has many of its own rules. Nor does that section say anything about rental leases or notarization.Quote:
Originally Posted by John WA
Excon, Lisa and Rockingmommy have also raised other issues.
Finally, landlord/tenant statutes are contained in RCW 59.18
Wow! A bunch of critcs here have really had a hard look at WA law and found that no NP's Ack. Is required of a Long Term lease... right?
Because I'm retired and have no daily need for Lexis or Westlaw, or much of a law library, I made a special little trip to my closest courthouse law library today to look at this and try to find where I went so wrong.
Well, guess what?. WA law does so require, just not where I'd noted it but rooted in fact in another WA law, and in case law supporting it.
And here's what I discovered:
That WA Court decision I cited, Saunders vs. Calloway, 708 P.2d 652 (1985 WA Court of Appeals, no WA Supreme Court appeal) says the following:
"Contract to make lease for term of over one year MUST (emphasis mine) be acknowledged, in that agreement to execute lease is within statute of frauds. West's RCWA 19.36010; 64.04.010." keynote 4, p.652
"...a contract to make a lease for a term of over a year must be acknowledged. Omak Realty Inv. Co. vs. Dewey, 129 Wash. 385, 225 P. 236; Wood vs. Still 124 Wash.377, 214 P.2d 625' pp. 655, 656.
And "Here the agreement to execute a lease is void and uninforceable because it was not acknowledged." p.656.
Seems our law really has little or nothing to do with any requirement for recording, where NP's Ack. is pretty universal, but is merely WA Courts interpretation and requirements of our statute of frauds.
Many thanks guys for your kind efforts to set me straight here with your "straight poop", and even a Computer Expert -lawyer had the courteous thought to tell me where my LL/T law is to be found.
Excuse but I still don't see anything to back up that it has to be notarized. All notarization does is confirm that the person, signing a document has had their identity verified. In the case of a rental lease, I don't see why that would be necerssary.
All you have produced is case law that says a lease over 1 year needs to be "acknowledged". But confirms with the statute you cite that it has to be signed. That's what I take acknowledged to mean. That both parties have to be able to prove their agreement with the contract.
SG, not my job or desire to justify what WA Courts have said our law is, just wanted to clarify what they have done.
FYI, case law here has now clearly said that an acknowledgement by authorized person (normally a NP) is required to validate a lease of longer-than-year so no need to look further.
I also got the chance to see if WA Supreme Court had ruled on Saunders, but apparently the case was not appealed to them or heard by them so the reported WA App. Court decision is our law.
Many times such a situation arises because both parties agree to settle their own case, and for a variety of reasons, neither party wants to chance seeing what the top court, the WA Supreme Court would do with it.
Sorry, but I still don't see it. All you have shown is that a contract over a year has to be "acknowledged". You say acknowledgement means by an authorized person. I see no proof of that. I see acknowledgement as meaning that the parties have signed off.Quote:
Originally Posted by John WA
If you have some further proof of your definition of acknowledged, I'll be glad to hear it.
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