By Harvey S. Jacobs May 15, 2010

Just because a landlord puts a clause in a lease doesn’t mean the clause is legal, valid or even binding on the tenant. Attempts by landlords to enforce certain clauses may even subject them to triple damages and having to pay their tenant’s attorney’s fees, if the issue goes to court. Some recent questions from readers deal with such troublesome clauses in rental leases.

Q: I am about to rent an apartment in a new D.C. luxury condominium that has been converted to a rental. My lease states: “Tenant hereby waives any and all rights she may have under TOPA.” What does that mean? Should I sign it?

A: The short answer is no, do not sign such a lease, even though that clause is not enforceable under D.C. law. It might be invalid, but do you want to go to court to prove it? TOPA stands for the Tenant Opportunity to Purchase Act. This law gives tenants in the District very specific and valuable rights to purchase their apartments in the event that they are put up for sale. Even if you do not want to buy your apartment, these TOPA rights may be sold to another person. You may not legally waive your TOPA rights. TOPA also requires your landlord to provide you and the D.C. Department of Consumer and Regulatory Affairs specific regulatory notices setting forth the terms under which your landlord is willing to sell your apartment. If your landlord receives an offer to buy your apartment from a third party, he must send you a copy of that contract and offer you the opportunity to match it.

Q: Money is tight, and I am apartment hunting. I found the ideal apartment close to Metro. My roommates and I can afford the rent, but the landlord is asking for the first month’s rent plus a security deposit equal to two additional months’ rent. Can he do that?

A: Not in the District. The maximum security deposit is an amount equal to your first month’s rent. But in Maryland and Virginia, a landlord can require two months’ rent.

Q: I moved out of my Maryland apartment almost two months ago and still have not received my security deposit back. Is this legal?

A: Maryland law is quite specific regarding security deposits. It defines a security deposit as “any payment of money, including payment of the last month’s rent in advance of the time its due, given to landlord by a tenant in order to protect the landlord against nonpayment of rent, damage due to breach of lease, or damage to the leased premises, common areas, major appliances, and furnishings.” If a landlord charges you more than that, you might be able to recover three times the amount of the overcharge plus attorney’s fees.

Your landlord was required, within 45 days after the termination of your tenancy, to return your security deposit plus interest, with deductions for the following: your breach of any term of the lease, unpaid rent, or damage in excess of ordinary wear and tear. You have a right to be present when your landlord conducts a walkthrough inspection, and you are entitled to an itemized list of the damage and the costs incurred by your landlord to repair it.

In the District, Maryland and Virginia, a landlord is required to give you a written receipt for your security deposit and to deposit the money in a separate, interest-bearing account in a federally insured financial institution doing business in that jurisdiction. With all the financial stresses that landlords and tenants are experiencing now, it is worth noting that, in Maryland, your security deposit may not be taken by either your creditors or your landlord’s.

Q: We sold our house in McLean and plan to stay in Virginia but move into a rental home. We located a nice home and just received the proposed rental agreement from the owner. This rental agreement seems to require us to agree to waive all manner of legal rights we might have under the Virginia Residential Landlord and Tenant Act. It asks us to agree in advance to “confess judgment” in favor of the landlord, it makes us pay for the landlord’s attorney fees in any lawsuit arising from the lease and it limits the landlord’s liability for his own negligence. These clauses all seem pretty onerous. Are they enforceable? Should we hire a lawyer to review this rental agreement?

A: None of these clauses is enforceable under Virginia law. In fact, if your landlord attempts to enforce any of them in court, you are likely to prevail and recover your actual damages, including reasonable attorney’s fees. However, just because some of your clauses are not enforceable under Virginia law does not mean that the remaining portions of your rental agreement would also be ignored by the court. This brings me to your second question. Since a rental agreement is, generally speaking, a legally binding document affecting your well-being, both financially and personally, it is wise to consult with a local, residential real estate lawyer. Your lawyer should not only review your lease for problem clauses but should also discuss relevant lease terms with you so you understand their legal significance. Then, even if your landlord refuses to make any material changes to your lease, you will at least be in a position to make an informed rental decision.

Harvey S. Jacobs is a real estate lawyer with Jacobs & Associates Attorneys at Law in Rockville. He is an active real estate investor, developer, landlord, settlement attorney, lender and Realtor. This column is not legal advice and should not be acted upon without obtaining your own legal counsel. Contact Jacobs at (301) 417-4144, or ask@