All About Lease Agreements
Lease agreements are contracts used for renting property between a landlord and a tenant. They serve as written proof of the terms of an agreement and are considered legally binding documents between the two parties. Because of their status as legally binding contracts, lease agreements impose legal obligations on both the tenant and landlord to uphold their end of the agreement. Failure to follow the terms of a lease agreement can have physical, logistical and financial consequences, especially when the agreement involves commercial real estate .
In a typical residential lease agreement, tenants pay a monthly fee to occupy the space in exchange for their use of the property. Commercial real estate lease agreements involve even lengthier contracts that stipulate what is expected of tenants and landlords. Because there are a lot more variables at play when renting a commercial property, these agreements often cover utility payments, maintenance, structure construction or renovation, insurance requirements and renewal dates in addition to the standard monthly rent.
Public Records Defined
Public records, as mandated by the Freedom of Information Act (FOIA), are public documents that are eligible for inspection, examination, access, and copying by the public – including landlords and tenants. Public records include written, printed, typed, or hand-written material that are prepared, owned, received, or retained by a public body in connection with the transaction of public business.
The intent and purpose of the public records law is to make records available to the public in order to ensure an informed citizenry and to facilitate an open and effective government that is accountable to the people.
However, not all records are available to the public under the FOIA. While one might think that public records would encompass all manner of documents owned or generated by any sort of government body, this is not the case. There are several exceptions that alleviate this access. This is an important distinction to keep in mind when discussing whether lease agreements fall under the umbrella of public records. While all records received or prepared by a government agency are generally public, there are many exceptions to this rule. In order to obtain records from a public body, individuals must examine the law to determine whether the records are part of the statutory exemptions from disclosure. Generally, these records include: internal predecisional advisory documents such as drafts; deliberative documents; public security documents; personal privacy records; medical documents; pending and ongoing litigation records; collective bargaining or confidential commercial documents; bank trade secrets; and, certain authorization that are required to be kept confidential by law.
Is a Lease Agreement Public Information?
While the initial thought is to answer that lease agreements are public records, the truth is, it’s complicated. For all intents and purposes, a lease is a contract. Contracts are not typically considered to be public record. But there are exceptions. For example, for the lease agreement of a public entity such as a municipal electric system or public parks and recreation facilities, an exemption will not apply. Also intended to be public record are lease agreements that are part of mediation, arbitration, or other ADR proceedings.
Many of the exceptions to the general rule that lease agreements are not public may have their sources in the Connecticut Freedom of Information Act. Specifically, Section 1-200(5) of the C.G.S. defines public records to include "any recorded data or documentary material, regardless of physical form or characteristics, whether or not transmitted, maintained or kept in whole or in part in physical form and whether or not required by law to be kept in such form." C.G.S. section 1-200(5) regarding public records does not include "preliminary drafts of reports or memoranda." C.G.S. section 1-210 (b)(1) exempts such preliminary reports from disclosure requirements, "except in instances where the final version of the report or memorandum is not released." If a lease agreement was catalogued into a private database of records, it is unlikely to be considered public.
Another exemption that applies is that "attendance at meetings of any public agency may be limited to persons giving testimony or otherwise concerned with the proceedings." However, the property owners, tenants, mortgagees, and other parties may have the right to access the document pursuant to the "Freedom of Information" Act.
While many may believe that lease agreements should qualify as public, as a general matter, the legislative history (from 1974) of section 1-210: unless a lease involves a public entity or institution, and then only to the extent that the public has a legitimate interest in the leasing entity as opposed to the specifics of that lease, the lease is essentially a contract between two private entities and not a public matter even though it may be in written form.
Getting Access to Lease Agreements
In many cases, lease agreements are not public records. While they are bound by the law in many ways similar to mortgages and deeds, they typically do not have to be recorded in any public database. Most states dictate that leases be provided to certain government agencies to determine taxation duties, but these statistics are usually classified. This means they are not likely available in the future or for the general public. However, each state has its own laws with regards to leasing information, and there are several exceptions to the general rule. Notably, the biggest exception to the above generalizations is that all leases regarding housing should be immediately accessible at a reasonable price.
The best way to find out if a specific lease is up for grabs is to contact the landlord or lessee directly. If this fails to provide the results you’re looking for and you suspect the lease may be a public record, then it may be time to consult a lawyer about your legal options. Depending on the situation, the lawyer may be able to persuade the property owner to provide the requested lease. If you suspect the lease is public but aren’t sure, the best way to access it will be to perform a liens and titles search.
If that still doesn’t turn up the information you need, your only option might be an injunction. An injunction is a demand for the wrongful party to stop doing something unlawful. Specifically, it may be necessary to contact the leasing department of the county clerk or specific office of vital records. If you have a legitimate need for the document, they should be able to tell you if a specific lease is available. If it is, it will be yours for a reasonable fee. In some cases, if your credit is good, obtaining the lease will not be very difficult. On the other hand, if you have poor credit and are requesting a lease for an annulled contract that you just want to take to court, the leasing department may require a notarized letter or similar proof.
Your Privacy Rights
While much of the focus is often on a party’s ability to access data through a public records search, there are privacy implications for both property owners and tenants that arise from who has access to these records. Both landowners and tenants should be aware of the various ways public records may be accessed by others. For example, are there public websites that include your property address and basic rental information? Are there public websites that include your name and personal information? While there are benefits to nice paying tenants and satisfied landlords, there may also be unwanted visitors who do not have positive motives. Information published on public records websites is available to anyone with internet access and a simple search engine query. Where you are located, the information requested, and the jurisdiction in question are all variables that can impact whether a lease is publicly available from a records request . For the most part, public records means public information: no expectation of privacy. All that is needed to view a public record is the ability to register an account on the required website. For example, the Collin County Central Appraisal District website offers more than thirty types of information that may be searched by anyone who registers for a free, limited-use account. This data includes property records, property tax information, and property value data. In Illinois, on the Cook County Assessor’s Office website, similar information is available, but the user is required to register and create an account to gain access to records. Even in states where leased property information is publicly available online, there are risks to people who have not authorized the pursuit of their information.
State Regulations
All states and territories regulate leases as part of their real estate law, and most have some kind of statute or regulation that describes how these leases should be recorded by the Registrar of Deeds so that "a deed shall not be valid unless it is acknowledged and recorded." Yet, some states and territories do have more stringent requirements than others with regard to restricting access to these rental agreements. As it turns out, some states have gone so far as to require that the information available in the public domain should be as specific and as limited as possible.
The state of Oregon, for instance, has a law that was measured to limit the release of personal information in public housing records so that the documentation or records indexed by lease number could not be released by the court administrator to any person who "has not specifically demonstrated professional necessity to access confidential information." For what it’s worth, professionals that include judges, jurors, witnesses, attorneys, and agencies that should know about this information fall under the category of people with a professional necessity.
Massachusetts allows greater access to such information, but it does provide a way for tenants to petition with the court so that their address won’t be made available via that index. Washington State on the other hand helps determine the need for confidentiality by having a judge consider three factors: the nature of the case, the potential for significant impairment to the rights of any party to the litigation, and the degree to which the party seeking the request for confidentiality has a greater interest in secrecy than the public.
What This Means for Renters and Owners
The key implication for tenants and landlords of the characterisation of a lease as a private record, or not, is the use and treatment of that record. While a public record may be used by any person for any purpose, such a use must be regulated where the record is private. This allows for greater (although arguably unjustified) control over a private record than may be the case where the record is public.
From a tenant’s perspective, public records ensure that there is far less risk of unfair eviction by a landlord or a landlord trying to enforce its rights against a tenant in inconsistent terms to those contained in the letter of appointment or lease. Within a public system, leases by default form part of the official land records. Such regulation of leases is preferred by tenants, as it creates a buffer from malicious or ill-intended landlords.
However, the classification of a lease as a private record may serve as a defence to third-party unlawful interference with a tenant’s lease, which will in turn ultimately court the protection of para 13(b) rights of access to courts. A tenant will also benefit from the removal of any disturbances with the terms and conditions of the lease agreement, which operate to change its rights or obligations under that lease. These benefits, however, may be outweighed by the disadvantages of a private record .
For landlords, the advantages of a private record include the fact that the terms and conditions of a lease do not have to be publicly registered on the Land Registry. Additionally, the general public will not have access to these records. These factors will greatly reduce the burden on a landlord, who may implement conditions to prevent free and open access to a record by (i) refusing to grant a copy of a lease; (ii) charging a fee for inspection and/or a copy of a lease; and/or (iii) making entry of certain information in the public record conditions precedent for access to such records.
However, a challenge to the lease itself cannot be brought without the lodgement of the original lease document with the Land Registry. There is no explicit acknowledgment of the right to enter judgements and obtain orders for eviction enforcement based on lease agreements not recorded in the public records.
The relative advantages of the official characterisation of a lease of a private record are reduced by the legal customary notion that a contract of lease is a real agreement that, as between the parties, vests in the tenant the right of use and enjoyment of land. Therefore, the critical issue is whether the tenant is in undisturbed use of the property being rented. Accordingly, there exists a strong argument that a tenant’s rights and title to property rented cannot be disfranchised by an unregistered document.