Default and Remedy Clauses in Residential Lease Agreements

By Lane V. Erickson, Attorney

An area of lease drafting that should be considered when preparing a residential rental agreement involves the default and remedy clauses. These are simply the paragraphs in a rental agreement that identify when a default occurs by either the landlord or the tenant and what the remedies will be for the non-defaulting party.

Many times a default and remedy clause is contained in the same paragraph although this is not required and is not always the case. In other rental agreements, there is no specific remedy clause by itself. Rather, the remedies available to the landlord or tenant are often described within the paragraph that identifies and describes other terms or conditions of the rental agreement.

Typically, in a written residential rental agreement, the default clause applies only to the tenant. Such a clause usually declares a default to exist when the tenant fails to perform some portion of the rental agreement, such as the payment of rent, moving out before the term of the rental agreement is over, damaging the property, or a violation of some other term of the agreement such as no pets or no smoking.

A wisely drafted default and/or remedy clause will protect the landlord by stating that there is no waiver attached to any remedy listed in the rental agreement. This essentially means that if a default or breach occurs by the tenant and the landlord fails to immediately exercise some remedy that is listed in the rental agreement, this failure does not act as a waiver of that remedy by the landlord.  Rather, the landlord can elect which remedies he wishes to pursue and at what times, but reserves the right to exercise any or all additional remedies that are listed in the written residential lease agreement at any time he elects.

It is important to note again that a lease agreement is at its essence nothing more than a contract. There is no requirement that a contract specifically describe the actions or the failures by the parties that will constitute a default. The non-performance of an agreed upon term in a contract in and of itself, and by application of basic contract law, constitutes a default or a breach. When a default or a breach occurs, the law will provide a remedy even if the parties themselves failed to do so in the written agreement.

If you are a landlord or a tenant and you have questions about your rental agreement, we can help. Call us toll free at 877-232-6101 or 208-232-6101 for a consultation with Lane Erickson and the Racine Olson team of Landlord and Tenant Law and Real Estate attorneys in Idaho. You can also email Lane Erickson directly at We will answer your Idaho Landlord and Tenant Law and Real Estate questions and will help you solve your Idaho Landlord and Tenant Law and Real Estate needs.

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