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Loren, Lawyer
Category: Real Estate Law
Satisfied Customers: 33482
Experience:  30 years of real estate practice experience.
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I signed a lease at Aspen Heights apartments and my

Customer Question

I signed a lease at Aspen Heights apartments and my guarantor was not approved. I was told I would still have to pay the monthly rent and I WILL NOT receive keys to the apartment until I have another Guarentor. I tried to find someone to sublease but I cant get anyone and I cant even afford college anymore ( reason Im leaving.) What do I do? I wasn't approved yet Im bound by a contract and cant move in if I wanted to.
JA: OK. The Real Estate Lawyer will need to help you with this.
Customer: ok
JA: Have you talked to a lawyer yet?
Customer: no
JA: Anything else you think the lawyer should know?
Customer: no
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Submitted: 1 year ago.
Category: Real Estate Law
Customer: replied 1 year ago.
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Expert:  Loren replied 1 year ago.

If your lease is contingent upon a satisfactory guarantor then they can terminate the lease as having a failed condition precedent. They can not charge you rent and refuse to give possession. They would have to waive the requirement of a guarantor to charge rent.

In other words, if the lease fails for lack of a guarantor, the whole lease fails, including your obligation to pay rent. They would have to sue you to enforce the rent obligation and no court will award them rent if they are not tendering possession.

If they refuse to return your money you should sue them in small claims court.

Customer: replied 1 year ago.
them telling me I am responsible to pay and can't get keys without a guarantor is false? I've attached a copy of the lease, but I want to make absolute sure before I seek other living accommodations elsewhere.
Expert:  Loren replied 1 year ago.

The lease is confusing because it states the guarantor is a condition precedent, which should affect your obligatiosn as well as theirs, but then in the same paragraph it states that they have the right to withhold possession and continue to charge rent.

I believe that would be held as unenforceable, since they have the right to approve or not approve a guarantor and then continue to charge rent without having to provide possession.

If you are in a position to litigate this I think you stand a better than fair chance of prevailing. The provision is predatory, abusive and inequitable. Additionally, the provision is vague and vagueness is interpreted agaisnt the drafting party.

Remember, though, it is risky to sign another lease. There is always the possibility that the landlord will seek to enforce the lease and you could be stuck with two leases.

Therefore, you may want to see if you can negotiate a settlement with the landlord. Perhaps an extra month of security deposit would induce them to drop the guarantor. Otherwise, they would have to sue you to collect the rent and I think a court would have a hard time enforcing this onerous a provision against a tenant. I believe they would tell the landlord that if the condition precedent has failed then they can terminate the lease or waive the guarantor requirement.

Expert:  Loren replied 1 year ago.

So, while I believe the provision is vulnerable, I would still not enter into any other leases until you resolve this one with the current landlord.

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