How to Modify a Lease
Updated: Feb 12, 2022
What is a lease modification?
Newport Beach real estate attorneys explain that a modification should be distinguished from an independent, collateral agreement that is entered into after the original contract but that does not vary the contract’s terms. A modification should also be distinguished from a supplemental written agreement that merely explains a prior written contract, because the same consideration that supports the original contract also supports the supplemental agreement
What Does Modification Require?
A modification generally requires new consideration, while a change in accordance with the terms of a contractual provision that authorizes and sets forth a method for revising the contract is simply a change in the contract’s terms that was bargained for by the parties at the time they entered the agreement and is supported by the same consideration that supported the contract.
Written v. Oral Agreements
A modification may require a writing if the original contract was within the purview of the statute of frauds. Statute of frauds states that certain agreements must be in a writing, signed by the parties, detailing the essential elements of the agreement.
Contracts that fall under the statute of frauds include: marriage, surety, real property, contracts that cannot be completed within a year, and goods for over $500.
If your lease cannot be completed within a year (i.e. a lease that is more than a year long) then it falls under the Statute of Frauds meaning that you need a writing in order to modify the original lease.
A written modification requires new consideration. If the modification adds to or varies the original contract’s terms so that new and onerous terms are imposed on one of the parties, the consideration may consist either of a new consideration or some favorable modification of the original contract. The surrendering of prior rights of the parties also may be sufficient consideration
An oral modification, which is permitted when the original agreement was oral, does not require new consideration. To be “executed,” the agreement must be fully performed by both sides.
In the case of an oral agreement to reduce the amount of rent payable under a written lease, the oral agreement is considered executed only as to the reduced rent for past months that has actually been paid by the tenant and accepted by the landlord under the oral agreement, and is not considered executed for rents to become due in the future.
An executed oral agreement may modify the original lease even though the lease provides that all changes must be approved in writing.
If you're looking to terminate or modify your lease, contact one of our legal professionals for a free phone consultation: 1-800-233-8521.