Renting student accommodation: how to avoid costly mistakes?

The last days of summer and the month of September are a time when cities are buzzing with students and house hunters. Getting your first lease or changing your home may seem like a simple formality, but this is where costly mistakes are often made. Unrecorded housing conditions, verbal agreements or ill-considered contract terms are often the cause of lengthy court disputes.

According to Karolína Briliūtė, Senior Associate at AVOCAD, the most important first step in this process is a proper inspection of the property before concluding the lease agreement.

She points out that if there is a dispute about who damaged the property, the essential evidence is the condition of the property before the rental agreement was concluded. The essential protection for proving one's position is provided when the condition of the property is recorded. "In such a case, it is advisable for both the landlord and the tenant to film the premises prior to the conclusion of the lease, recording the date on which the recording is made, and reviewing the condition of the premises, identifying any damage or defects already present prior to the lease. The recorded defects must be included in the lease agreement, clearly discussing them", advises K. Briliūtė.

Otherwise, the landlord may take the position that certain defects in the property were caused by the tenant, either during the lease or after its expiry. According to the general rules of evidence, the burden of rebutting such allegations lies with the tenant. In the absence of visual evidence, the tenant risks not being able to defend itself against the claims made against it and having to pay for the damage caused to the dwelling, even if it existed before the contract was concluded. Accordingly, the recording of the condition of the property also makes it easier for the landlord to meet the burden of proof by claiming that it was the tenant who caused the damage during the rental period and thus caused the damage for which it is liable.

AVOCAD's lawyer also identifies a second important step - the conclusion of a written contract. "Although the law provides that a lease agreement can be concluded orally, case law and the volume of disputes that arise confirm that one should not be tempted by its simplicity," warns Karolina Briliūtė.

In the absence of a written contract as evidence and, for example, if the tenant fails to pay the rent, it is difficult for the landlord to prove that the tenant even lived on the premises, and it is also difficult to prove the true intention of the parties as to what was agreed in the lease contract (the price, the term of the lease, the liquidated damages, the penalties, the termination procedure, the termination notice periods etc.). This makes proof difficult, as the parties' explanations or the testimony of witnesses are given decisive weight, and this bureaucratic burden is particularly burdensome in court for the parties themselves. The additional hassle can be avoided by drawing up a written lease agreement and by discussing all the terms of the agreement in as much detail as possible, so as to leave no room for interpretation by the parties.

In this respect, she says, it is advisable to weigh up the potential risks and potential disputes and not be tempted to enter into a written contract in order to avoid taxes.

Lawyer Karolina Briliūtė also points out that subletting is only possible with the owner's consent. It is quite common for several tenants (students) to rent one apartment, but then one of the tenants decides to move out and "sublet" the room to another. In this case, an additional step is necessary to obtain the landlord's consent to sublet the property. If this is not done and disputes arise between the parties, the subletting contract may be invalidated. As in the case of a head lease, it is advisable to keep a record of the condition of the premises in the form of a visual record. This is to protect both the tenant and the sub-tenant in the event of any later questions as to whose fault any damage to the premises was.

You should also be aware of an additional protection for the tenant - the possibility to request a declaration that the terms of the lease are unfair.

In this case, if the lessor is a legal person, the lessee, as a consumer, is clearly entitled to the additional protection afforded to consumers, namely the possibility of requesting the annulment of the provisions of the lease. "It should be borne in mind that a natural person may also be considered an entrepreneur if the rental of residential premises is his/her usual (frequent) activity, the income from which is derived or a certain part of the rental income constitutes the landlord's income. In this way, the tenant is entitled to the additional consumer protection that applies to consumers," she stresses.

According to Karolina Briliūtė, unfair terms can be defined as terms that substantially unbalance the rights and obligations of the landlord and the tenant, putting the tenant in a significantly worse position than the landlord.

For this reason, it is preferable to prove the agreed circumstances where there is a written contract, rather than relying solely on oral explanations in the event of a dispute as to what was agreed between the landlord and the tenant.

In conclusion, the lawyer says that when concluding lease agreements, it is advisable not to avoid concluding them in writing, agreeing on all the terms of the agreement in as much detail as possible in order to avoid any interpretation of such provisions, recording the condition of the premises for both the landlord and the tenant prior to the conclusion of the agreement, making sure that the terms of the agreement do not distort the balance of the parties' rights and duties, and that any change of one of the tenants in the contractual relationship is only possible with the landlord's agreement.