Failure to deliver possession

Around here, most leases have a “failure to deliver possession” clause that says that, if the landlord can’t deliver the apartment at the start of the lease, you don’t have to pay the rent until he does. That seems superficially reasonable, so lots of people sign leases with that clause. Especially lots of students.

What the students don’t understand is that, without that clause, the landlord would be responsible for paying the damages that result from the landlord not honoring the lease. (Typically, the cost of a hotel room and storage fees for your stuff. Also extra money to your movers, since they probably charge extra to unload your stuff into storage, and then load it back up to deliver it when your apartment is finally ready.) Instead, with the clause, the student is just out in the cold—no place to live, no place to store their stuff—for an indefinite amount of time. Plus, they can’t just go find another place to live, because they’ve signed a lease. Once their landlord delivers the keys, they have to start paying the rent.

This is not something that I would have worried about when I was a student. In fact, I was shocked and appalled the first time I heard about a whole apartment building that was supposed to be finished in time for students to move in August 1st, but was still unavailable the day the dorms opened in late August. (The most common version of this clause in contracts around here does give the renter the right to cancel the whole lease if their apartment isn’t available after 30 days. Maybe that’s required by state law, or maybe it’s just that judges found it unconscionable to try to hold a renter to a lease for an apartment that can’t be made available even several weeks late. In any case, it’s kind of meager comfort since all the good and cheap places to live will have been long ago rented out by the time it’s safe for you to sign another lease.)

Over the years, though, I’ve gotten kind of inured to it. It happens year after year. Especially in years that a big new apartment building goes up, the newspapers have a bunch of stories in late August with sad and angry quotes from frustrated students with no place to live. I almost begin to hold it against the students, for being so foolish as to sign such a one-sided lease. And then I remember how surprised I was the first time the real effect of that clause was explained to me. I remember realizing that I could easily have been caught in the same error. Even six or seven years out of college, I didn’t know the ins and outs of that clause. How could the students know? (Actually, I kept a dorm room right through college, partially because I knew that I didn’t want to try to deal with all that stuff.)

I wish I knew a way to prevent this problem. The two obvious ways have both already failed:

  • Education doesn’t work, because there’s simply too many things that someone who’s trying to set up housekeeping for the first time needs to know. The evidence shows that this particular one falls through the cracks. (The local Tenant Union has been warning about this issue forever.)
  • Reasonable rules don’t work, because there are reasonable rules, except that the rules permit the parties to agree to waive them.

I guess what we need are rules that can’t be waived (or, at least, can’t be completely waved) in the lease. But that’s always fraught. Some people really don’t need the protection—local students who can easily enough wait another few weeks to move out of their parents’ house, for example. And the landlords are already taking a risk by investing in constructing a new apartment building. Layering it up with the risk that a minor construction delay could force them to cancel dozens of leases may be asking too much.

But I’m sure that the current scheme is bad. I see the bad results in the newspaper year after year.