Dormitory Parents Are Getting Refunds, So What About my Children's Off-Campus Lease?

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With colleges and universities making the decision to move to online learning in the midst of the Covid-19 pandemic, families are left with a myriad of questions regarding costs previously expended or borrowed to pay for their students' living arrangements. Many colleges and universities have chosen to either refund a percentage of room and board or provide a credit toward future costs. What about families who have students in off-campus living arrangements not associated with the schools their students are attending?

In this instance, the student most definitely signed a lease with a landlord and a parent or another family member signed the lease as a guarantor so the landlord would feel secure that payment of rent would be made. Even a novice reader would conclude this document was ironclad and provides no recourse for the situation where the student cannot return to school. Most leases are foreboding documents of multiple pages containing run on sentences and legal terms in French or Latin that the reader is not familiar with. Some may even be familiar with terms like force majeure (sometimes called Act of God), but a careful reading of this clause would seem to offer no escape for the tenant, appearing only to favor the landlord. Of course, because the landlord or his or her attorney prepared the lease, the entire document will seem to favor only the landlord.  

So, what can one do in this situation? A careful reading of the lease is the first step. All leases will be slightly different and must be reviewed before any decision can be made. After a thorough reading of the lease, and considering the particular circumstances of your state and the counties where you live and where the off campus housing is located, the law may offer several options for the student and the guarantor.  

Pennsylvania, New York and many other states recognize the doctrine of frustration of contractual purpose or “impracticability of performance” as a valid defense to performance under a contract. Additionally, the courts have recognized the principles of “Discharge by Supervening Impracticability” and “prevention by Governmental Regulation or Order.” These principles allow a party to essentially cancel his or her obligations under the contract because the very purpose of the contract has been frustrated or prevented by an event beyond the party's control. In light of the recent decisions by schools to close their doors, coupled with various governors’ decisions to shelter in place in many counties, the student is not only frustrated but is prevented from returning to his or her off campus apartment.

Many of you may have already received a letter from your landlord advising you that you must continue to pay rent because s/he is open for business (unlike the college or university) and has bills to pay, such as mortgage payments, utilities, maintenance and staff. Of course, this is true, but we all have these bills to pay and many of us are prevented from working by governmental order. Many states have also decided to close landlord tenant courts until the pandemic subsides. In light of the circumstances, landlords would be wise to consider a more tolerant approach.

There is no clear or decisive answer to the question of whether rent for off campus housing must be paid. The particular circumstances of each case must be considered, such as, what does the lease say, is the student now on lockdown, is the county where the apartment is located on lockdown, is the apartment complex single unit or designed for mass student living.

Depending on your financial situation and the class year of the student, it may be advisable to consult legal counsel to advise on the practicability of these defenses to your situation.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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