Expert: Mike Fortunato - 5/9/2009

Question
With the tough economic times, our tenant asked to pay a lower monthly amount than what is stipulated in her lease agreement. There have been a number of Cost of Living Adjustments through the years.  The last amount paid is no longer what is shown in the original lease.  We negotiated a mutually agreeable reduced amount.  All our negotiations were done via email. I have deposited two monthly payments of the reduced amount.  

QUESTIONS:
- Does this change in the amount paid, and our acceptance of the tenant's checks, nullify/invalidate the original lease agreement?  
- Should I have a new lease agreement drawn up showing the reduced amount and specify any other changes to the conditions of the lease?
- The tenant has already expressed a desire to maintain all conditions specified in the original lease.  As the landlord, shouldn't I have the latitude to say the conditions of the original lease has changed, and I now have new terms?

Thank you for your assistance.

Answer
Without being able to review the exact wording in your emails, I won't be able to determine how the lease may have been modified. But generally speaking, if the rent reduction was a mutual understanding, the only thing that was probably changed in the original lease was the rent amount, and all other terms should remain the same and the lease would still be in force. No -- you probably do not have the right to rewrite the lease at this point, unless the tenant is willing to do so.

The way we have been handling temporary rent reductions is to do so with a letter of understanding (rather than amending the lease), which makes the rent reduction temporary (usually only for around 6 months), and also provides that if the tenant defaults again, all of the rent relief will come due. Also, we usually try to defer the rent rather than forgive altogether.