What to do if we recently realized our landlord used a commercial lease for our residential rental?

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What to do if we recently realized our landlord used a commercial lease for our residential rental?

He also increased the late fees without a signed amendment by both parties. Would the lease itself be a breach of contract and able use to get out of the lease?

Asked on November 19, 2012 under Real Estate Law, North Carolina

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

The law does not distinguish between commerial and residential lease forms--a landlord can use a "commercial" lease for a residential tenant (or vice versa), though the commercial form of the lease will not override any statutory protections given residential tenants. (For example: in many states, like, say, New Jersey, residential tenants are given protections against eviction that commercial tenants lack.) So while the use of a commercial lease cannot deprive a residential tenant of his/her rights, the use  of the commercial lease itself is not invalid or illegal.

If there is a written lease, a landlord may not increase fees during the term of the lease (e.g. before it expires), since the lease is a contract--unless, that is, the lease itself has some clause or provision which gives the landlord the right to do this. If it does, then since the tenant agreed to that in signing the lease, that provision would be enforceable.


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