Sneaking in a Clause in your Rental Agreement: Legal or No?

It was an ordinary rental agreement drafted by the landlord, until the tenants snuck in a “Birthday Cake” clause, which requires the landlord provide a birthday cake for each of his tenants on their birthdays. “Vanilla is not acceptable.” The landlord signs the agreement without noticing the new term.

Is this an innocent joke or is the landlord bound by the “Birthday Cake” clause?

Timing: Who Signed it First?

Whether a contract is legally binding depends on many things, including when the contract was signed. One reason is that both parties must have the opportunity to read and agree on the essential terms. If a contract is modified by one party after the other has already reviewed and signed the contract, this change is known as a unilateral modification.

In some cases, the parties agree to the terms currently in the contract as well as any future changes one party might make to the contract. If the parties do not make such an agreement, the contract cannot be unilaterally modified. Think about it — if one party is legally bound by the terms the other party adds after signing, the tenant could add any number of terms that the landlord would need to uphold. What if the tenant adds a “Birthday Present” clause which requires the landlord to buy each tenant a new car every year for the tenants’ respective birthdays? The landlord, who signed the contract before the tenant made such a modification, would be bound to a term that he had no chance to review or deny.

In this case, there does not appear to be an agreement that unilateral changes are binding. If the landlord had signed the contract before the tenant added the clause, the term is void. However, the landlord appears to have signed the contract after the tenant made the modification, so it is not void simply based on timing.

Contracts: Meeting of the Minds

A rental agreement is a legally binding contract between two or more parties. In general, when two parties come to an agreement, both should have the same understanding of the terms and conditions of the agreement, or mutual assent. This is also known in contract terms as “meeting of the minds.”

In this scenario, the landlord didn’t know the tenants sneakily added a “Birthday Cake” clause. The landlord likely assumed he was signing the same contract he sent to the tenants initially for signature and unwittingly signed the modified rental agreement. While there was mutual agreement as to the other terms of the contract, there was no “meeting of the minds” as to the added “Birthday Cake” clause.

Signed without Reading

The fact remains that the landlord signed this contract without thoroughly reading it. Surely he figured the contract was the same contract he drafted initially, but is this a valid excuse to void the “Birthday Cake” term?

If one party did not have the mental capacity to understand the terms of the contract, a contract may be void. “I didn’t read the contract before signing” is not a valid defense. If you have the capability of understanding the contract and you simply didn’t take the time to read it, the contract is still valid.

There are some exceptions. For example, if your spouse-to-be puts a pile of papers in front of you, including a premarital agreement, and asks that you sign them quickly, the premarital agreement may not be enforceable if you signed it without having read it. Why? The law does not condone “slipping something by” one party in order to create an enforceable contract.

When asked, the tenants insisted they will enforce the “Birthday Cake” clause in their lease, but it is not enforceable under the law. If the landlord has a sense of humor, he may bring his tenants cake on their birthdays regardless, so long as it’s not vanilla.

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