Is a lease legal ifa tenantreturned it via fax, never saw the apartment, and never moved in?

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Is a lease legal ifa tenantreturned it via fax, never saw the apartment, and never moved in?

I was going to go away to college at a university that is approximately an hour away. I was required to get off campus housing due to the fact that it’s a small liberal arts college and I am a non-traditional student. So, I tried to find an apartment that was reasonable to me in price. All over the campus I saw an advertisement for an apartment that would accept the Pell grant return as payment for rent. Since I was on financial aid for the college, I thought this would be a good idea.

Asked on October 8, 2010 under Real Estate Law, North Carolina

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

I'd also like to add that, since your lease appears to be valid, you are responsible for all rental due under it. So see if your landlord will let your terminate it early.  If not, you still may not be liable for all of the remaining lease payments.  The reason is that landlords do have a duty to "mitigate" damages"; that is to minimize their damages by re-letting the premises.  This means that if you break the lease, he or she has to advertise the place to try to find a new tenant, and if or once they do, they have to let you out of the remainder of the term.  However, this may take time and result in your paying for at least a few months but it may at least give you some financial relief.  Also, you may be able to assist your landlord in finding a new tenant; maybe a friend or someone from work?  If you find a suitable tenant, the landlord would have to take them.  Or perhaps, if your lease allows or the landlord will permit, you can try to sublet. Thus, even as you are paying the landlord rent, someone else is paying you.  You can more easily accomplish this by subletting to your sub-tenant for less than what you pay.  You then will make up this difference.  Granted, it's not the perfect solution but getting something from a sub-tenant is better than getting nothing from no tenant.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

1) Leases can indeed by executed and returned by fax--and, in fact, often are. There is no requirement for in-person signing, hand or mail delivery, etc. If you claim that your signature is forged or the lease was altered after you signed it, that's a different matter--now there's a fraud claim, and fraud can invalidate a lease or other contract. But absent some alleagation of wrong doing, faxed execution or return is legal and enforceable.

2) There is no requirement whatsoever that a tenant or prospective tenant has to see an apartment for a lease to be enforceable. There's also no requirement that the tenant ever move in--whether or when you move in is your issue, not the landlord's. It's signing the lease that makes it enforceable and obligates you.


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