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I've seen some landlords refuse to provide a sample residential lease contract prior to making an often non-refundable application, in California and other states.

Is it legal? Aren't you supposed to be able to verify the contract with your lawyer prior to even looking at the premises, let alone paying any application fees and submitting oneself to the credit check?

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    It is legal; your recourse is to not apply if they won't let you see it. Many landlords will give you the "non-refundable" application fee back if you pass the background check and they offer you the place, and you can't agree on the contract terms.
    – gracey209
    Sep 4, 2015 at 13:34

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I would presume that this is legal (without researching the laws in Cali. or Texas).

Their contract is an offer to enter into an agreement. You accept that offer by signing. Their pre-requisite for that offer is that you pay the nonrefundable application fee. In other words, they are refusing to make you an offer until you pay a set fee.

Now the degree of negotiability, among other factors, would go into determining whether the contract is fully enforceable.

I did a little bit of research. (Please note that this is not legal advice. If this applies to a current situation, seek the advice of an attorney licensed to practice in your jurisdiction.)

There does not seem to be any indication that the landlord needs to provide a sample lease to you before s/he decides that you are an eligible applicant. The application fee is not a contract to rent the premises; it is an application to be considered a tenant.

Pro-Business Perspective: Why would I (the landlord) waste my time going over an application with someone and show them a model unit if they are not even eligible to rent from me? I have better things to do.

Pro-Consumer Perspective: Why waste my time and money if I refuse non-negotiable terms in a lease?

The application fee is capped in California and must be used to cover screening costs or refunded if not used.

The likelihood of success in a claim regarding this might be indicated by the California Dept. of Consumer Affairs: "If you don't like the landlord's policy on application screening fees, you may want to look for another rental unit. If you decide to pay the application screening fee, any agreement regarding a refund should be in writing."

It is important to note that you can always try to negotiate with the landlord. Personally, every lease I have had I have negotiated to get more favorable terms. You, as a tenant, have every right to try to negotiate, and should use that right.

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    I think your determination of it being legal would make sense only if receiving an offer to enter into an agreement was valuable in and of itself, which I don't think it is. Or, if contracts were truly custom drafted, which they aren't. Instead, the situation you describe is more along the lines of bait-and-switch -- they tell you they're really nice and rent is only XXX, but then you see in the contract that they reserve the right to increase it, have extra fees, and the extra fees themselves could be increased, too etc.
    – cnst
    Jun 24, 2015 at 22:02
  • I'd be very surprised if it didn't also depend drastically on the cost of the application. I'm pretty sure it would have to be illegal if (to provide a hyperbolic example) they required you to pay $1 million just to process the application.
    – Parthian Shot
    Jun 25, 2015 at 2:30
  • @cnst You must remember that this is all negotiation. Both you and the landlord have differing values on each possible aspect of an interaction.
    – Andrew
    Jun 25, 2015 at 14:58
  • @Andrew, not always -- the corporate landlords don't negotiate, all of their offers are pretty much take it or leave it. unfortunately, the ability to see the contract prior to making an application would probably be the only negotiating point that could possibly be undertaken.
    – cnst
    Jun 25, 2015 at 22:18
  • @cnst: but be fair, you can't conclude from the fact that the mechanism can be or is used for fraud, that the mechanism is illegal. Using it for fraud is illegal, and the mechanism is illegal if some legislators have gone to the trouble of making it so ;-) Basically, you can legally sell things in sacks even though some unscrupulous people take advantage of this fact to bait-and-switch you.
    – Steve Jessop
    Sep 26, 2015 at 8:42
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There is no law in California requiring landlords to show a proposed contract to a potential tenant. Landlord-related laws are in the Civil Code at Division 3 Part 4 Title 5, s 1940ff.

For practical reasons, the landlord does have to show the contract to the potential tenant when they ask them to sign it, but not before.

In contrast, in Victoria, Australia, the law requires landlords to use a standard form contract: Residential Tenancies Act 1997 (Vic), s 26 and Residential Tenancies Regulations 2008, reg 7 and Sch 1, Form 1. This means that there are no surprises before you apply for a tenancy.

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In general I expect it would be legal for a landlord to only share the details of the rental contract with genuinely interested prospective tenants. Paper and toner to copy the contract isn't free. The landlord may even be using a "legal self-help" kit or a contract otherwise under copyright, for which he incurs a per-copy cost. When leasing commercial or industrial premises, the parties may want to keep the exact details of the contract (price, access to amenities, mutual protection of trade name and trade dress...) as a confidential and proprietary matter between them. Even in a residential setting, apartment floor plans or walk-through and details of amenities listed in a contract could be helpful to a stalker, burglar, or paparazzi.

Specific states may have consumer protection laws limiting an "application fee" and restricting it to certain purposes, as the other answer noted for California. There are also restrictions on security deposits and automatic, inalienable obligations between landlord and tenant under state law, but those vary from state to state.

The Fair Housing Act prohibits several actions, including refusal "to negotiate for housing", but only on the basis of a long list of protected factors, and "refusal to pay an application fee" doesn't seem to be one of them.

Of course, if you really have no opportunity to look at the contract before signing it (or worse, if you sign some form that purports to incorporate the contract, which you have not seen, by reference), that would probably make the contract unenforceable as against you and liberally construed against the landlord. It's for a slightly different reason, but a Michigan circuit court affimed a ruling that a contract describing that the landlord was a "builder" when the landlord was not, in fact, a licensed residential builder was void.

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  • This is an interesting answer, but it makes too many assumptions that are just not correct. First, I've never once seen the plans being included in the contract, they are instead most often available in the free brochure, for anyone to see. Second, I'm not asking for a printed paper copy, would much rather get an email instead. Third, looking at existing signed and custom contracts is likewise outside of the scope of the question. And, finally, the smaller "legal self-help" landlords, on the contrary, rarely hide such stuff, it's only the big corporate ones that do.
    – cnst
    Sep 29, 2015 at 18:53

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