Landlords of commercial properties have a great deal of freedom in drafting their lease agreements. Residential landlords do not have the same degree of latitude. Maine, like other states, has enacted a number of laws designed to protect residential tenants from certain practices and arrangements that the legislature has determined to be unfair or abusive.
For example, a landlord under a residential lease may not treat a rent payment as late unless it is more than fifteen days late, and any late fee may not exceed four percent of the monthly rent. Similarly, a security deposit may not exceed two months’ rent, and there is a specific procedure that the landlord must follow if he or she decides to retain any part of the security deposit. Certain provisions—such as any provision absolving the landlord of liability for the landlord’s own negligence, or requiring the tenant to waive certain rights—are unenforceable and violate the Unfair Trade Practices Act, potentially exposing the landlord to a court action for damages and attorney fees.
In light of these special drafting considerations and risks, a residential landlord should ideally consult with a lawyer who can craft a lease that is tailored to his or her specific needs and complies with Maine law. Lease templates available on the internet or in print may have been drafted by nonlawyers unfamiliar with the requirements of Maine law, or for use in another state whose laws differ from those of Maine.
If it is not possible to consult with an attorney, the landlord should consider referring to the model lease published by the Office of the Maine Attorney General, available at https://www.maine.gov/ag/consumer/law_guide_article.shtml?id=27935. Although this model lease may not be suitable for all purposes and likely offers less protection to the landlord than one specially drafted by an attorney, it will in most cases be preferable to a template obtained from the internet or a print service that may or may not comply with Maine law.
Finally, a landlord who is not able to consult with an attorney might consider not using a written lease. In the absence of a written lease agreement, the landlord and tenant enter into what is called a tenancy at will, and their respective rights are provided by statute. Although a tenancy at will does not offer landlords the same degree of protection as a well-drafted written lease agreement, it may be preferable to a poorly drafted lease that is unclear as to the rights of the parties or is unenforceable under Maine law.
