Not Necessarily Needing A Lawyer

By Jamie Kent Hamelburg

Do you need a lawyer to draft a lease?  My answer might surprise you.  In Montgomery County, Maryland, you might be able to adopt a do-it-yourself approach – at least for drafting a residential lease.

The Montgomery County Maryland Commission on Landlord and Tenant Affairs has a model lease for residential tenancies.   The Commission, which is part of the Department of Housing and Community Affairs, combed through the laws dealing with residential tenancies in the State of Maryland and Montgomery County, and crafted a model lease for renting apartments and condominiums.  The lease is available online and at no cost at http://www6.montgomerycountymd.gov/content/dhca/housing/landlord_t/pdf/single%20family%20dwelling%20lease-2005.pdf, and a Commission-approved model lease for single family dwellings also is online at http://www6.montgomerycountymd.gov/content/dhca/housing/landlord_t/pdf/single%20family%20dwelling%20lease-2005.pdf.

Do the existence of these online forms mean that a residential landlord in Montgomery County doesn’t need legal advice?  Not at all.

Since the Cities of Gaithersburg, Rockville and Takoma Park have their own rules on residential leases, the model Montgomery County lease should not be used in those areas.  Additionally, while the model lease is a great resource in terms of documenting the relationship between a landlord and tenant, either party might need assistance in negotiating the major terms such as dates for possession and the bifurcation of other landlord obligations and rights and tenant obligations and rights.  And some lease provisions, such as those involving the collection, accounting and treatment of security deposits, might not be readily understood by a new landlord.  Finally, there are certain required provisions that cannot be modified or deleted and if they are, a landlord can find itself in hot water with the Commission.  And, of course, perhaps most important, when a party to the lease breaks, or “breaches,” a lease provision, an attorney can help to enforce the lease by, for example, writing a demand letter to collect amounts owed or prosecuting an eviction action.

A commercial lease also is a different story.  Commercial leases are not regulated and vary significantly from landlord to landlord in terms of length and content.  Since commercial lease terms can be the subject of extensive negotiations between the parties, an attorney can provide meaningful assistance in advocating for specific items that will protect a party’s interest.  Unless a commercial landlord has a tried-and-true lease it has used successfully with a number of tenants, a wise landlord will seek the assistance of counsel.  Similarly, a commercial tenant will best be represented by someone who is expert in lease matters.

Of course, a novice landlord may ask, “What about online services like legalzoom.com or rocketlawyer.com?  While they can provide basic generic forms, there is no expert advice tailored to your particular transaction that comes with the form.  The advice is what is critical and the lack thereof is what typically leads to trouble down the road.

The final word--while the owner of residential property in Montgomery County can, with assurance, use the online model form, landlords outside of that area (and those in Gaithersburg, Rockville and Takoma Park), and all commercial landlords, should seek competent legal advice when drafting a lease.   And for those who don’t, is the lawyer’s lament, “You can pay me now or pay me later,” because keeping a client out of trouble is much easier than getting a client out of trouble.