By Colin McCarthy, J.D., Robinson & Wood, San Jose, CA

One of my favorite movies of all time (I have a lot of them), Die Hard, has many great lines which I like to quote. Frequently it’s the “yippee-ki-yay” line, usually right as I am about to win a case. Sometimes it’s “What were you doing with the detonators, Hans?” for no real reason. I also like “You asked for miracles? I give you the F. (pause) B. (pause) I.” But one of my favorite lines and the one that gets the ball rolling on all of the above is in the opening scene, when our hero arrives at the airport in L.A., and sees a California girl act silly and leap into the arms of her man. Bruce simply says with a shake of the head: “California.”

He is so right. California is a great place, but sometimes it does merit the odd shake of the head. Here is an example: Did you know that for purposes of strict products liability, a residential dwelling that injures is considered a “product,” provided it meets certain requirements? Strict products liability makes it even easier to find liability against defendants for injuries by eliminating certain proof requirements. So it’s easier to sue a “product” manufacturer for injuries than under other circumstances.

In some cases, it will be easier in California to sue a home builder for injuries brought about by things in the home on this strict products liability theory. Fortunately for the smaller-end builder, it usually does not apply. It applies to the large-scale residential home developer. It typically will not apply to the builder who does an occasional home build and sells. The idea is that the large-scale developer is presenting itself as a leader in building homes and has expertise and skill on which the home buyer is relying. That is not the case with the person who builds homes on a more isolated basis. It is also not the case with the subcontractors working for the large-scale home developers.

The subcontractors also do not make a “product” per se but provide a service, whereas the developer of large-scale residential developments is placing “products” of individual residential units into the stream of commerce. If they injure, say by a bad design, the entity that places that “product” into the stream of commerce will be liable.

Which begs the totally unrelated question: Do you think Bruce Willis’ character totally got sued for all the property damage he caused at Nakatomi Tower? Maybe not, but if I were him I would have sued that TV reporter for invasion of privacy …

This blog submission is only for purposes of disseminating information. It does not constitute legal advice. The statements in this blog submissions do not necessarily reflect the opinions of Robinson & Wood, Inc. or its clients. No attorney-client relationship is formed by virtue of reading this blog entry or submitting a comment thereto. If you need legal advice, please hire a licensed attorney in your state.

By Salvatore J. Friscia, San Diego Premier Property Management, San Diego, CA

The landlord won’t make timely repairs, the common area laundry room is a mess, or the management company never answers their phones. Three very common complaints found online from renters regarding their experience with property management companies across the country. In the past, potential applicants would only discover these complaints by either word of mouth, knowing someone in the complex, or worse, once it’s too late and they were already experiencing issues first hand. Well, social media has certainly changed that, and with a click of a mouse (or should I say the pressing of a finger against the touch screen), past and present tenants can now comment on their rental experience. Power sites such as Yelp, Kudzu, Angie’s List, and of course Facebook and Twitter, are open forums respected by many that allow reviews, dialogue, and comments that in some cases can have lasting and serious consequences whether good or bad to the property management company against which they are levied. This form of feedback and review seems fair and useful in helping determine which property management companies have built better tenant relations. But should tenants beware when posting something less flattering or even downright negative regarding their experience with a property management company?

Just recently a woman, Helen Maslona of Chicago, was sued over her posting of a negative online review about a contractor on a leading online review website. These types of lawsuits are becoming more common and are referred to as SLAPP lawsuits (Strategic Lawsuits Against Public Participation). As many as 27 states have Anti-SLAPP laws, but many don’t and leave unsuspecting reviewers vulnerable to backlash from their comment or review. If you plan on making comments or reviews, it is suggested that you take a few things into consideration to protect yourself and also offer the best online review to the public.

1) Tell the truth about the experience.
2) Comment with the intent to help others benefit from your review.
3) Stay clear of vulgarities, heavy opinions, and accusations.

If you do find yourself posting a negative review, allow the property management company to respond and hopefully clear up the misunderstanding. Most reputable companies will try to accommodate their tenants and preserve their online reputation. In kind, make sure you follow up that negative comment with an update showing the resolution. Just remember that reviews on social media sites are both necessary and important but can have consequences, so be careful what you post out there.

By Colin McCarthy, J.D., Robinson & Wood, San Jose, CA

There’s been an awful lot of discussion around this blog regarding a landlord’s liability for personal injuries and property damage occasioned to tenants and third parties. It would seem like the landlord is exposed in all manner of fronts for all manner of different circumstances. Appearances notwithstanding, the blog readers will know that the issue of notice, control, and an opportunity to remedy are all important in California in determining whether a landlord owes a duty to protect someone from injury. If they do, more forward-planning readers might be thinking: “Well I’ll just protect myself by inserting a clause in my lease agreement that waives the tenant’s rights against me.” There are two problems with that.

The first is that in California, any such language is prohibited by statute (Civil Code §1953) and public policy. The statute provides that unless the lease is presented to the lessee before she takes possession of the property, any provision in a lease which purports to waive the lessor’s liability to the landlord for breach of a duty which leads to personal injury or property damage is void. This might suggest that if you show the lease agreement before the tenant takes possession, you might be able to work around it. Not so. Case law takes this exception away in the case of residential leases. The public policy behind it is that housing is important and difficult to come by, so a person should not be forced to waive these rights just to get a great apartment. So in California, you cannot require your tenant to waive the right to sue you for these types of injuries.

The second problem is that any such release would not inure to the landlord’s benefit regarding those other third parties who visit your tenant and get injured. The landlord still has to protect them from potentially dangerous conditions of which he is or should be aware, over which he has control, and over which he has an opportunity to exert that control. If he does, he should fix the problem, warn about it, or do something to prevent injury or damage to that third person.

It is always best to get counsel to review a lease agreement or draft it for you so that the agreement puts into effect those things you need to be in effect, does not have unnecessary verbiage (such as a clause referenced above), and which clearly spells out each party’s responsibilities, obligations, and rights under the agreement. A good lawyer can help the landlord or the tenant get what each needs. I recommend employing one.

This blog submission is only for purposes of disseminating information. It does not constitute legal advice. The statements in this blog submissions do not necessarily reflect the opinions of Robinson & Wood, Inc. or its clients. No attorney-client relationship is formed by virtue of reading this blog entry or submitting a comment thereto. If you need legal advice, please hire a licensed attorney in your state.

By Colin McCarthy, J.D., Robinson & Wood, San Jose, CA

So we have covered a landlord’s liability for criminals, animals, and drunks. What about for tenants with guns? Does a landlord have any duty to third parties if he knows his tenant has guns? What about if he knows the tenant has guns but never uses them? What if the opposite is true? The landlord knows the tenant has guns and likes to use them. In the back yard of the rented premises. In the direction of occupied houses. Is there a duty? (What you think people?! You’ve read enough to know which way the Honorable Judge McCarthy would rule! Or have you?) If there is a duty, what does that duty entail?

In one case on these facts, the parents of a 10-year-old girl who was accidentally shot and killed sued the landlord of the person who shot the girl. The tenant was in the back yard of the rented premises when he discharged the weapon. He did so in a direction facing the occupied premises of the decedent 10-year-old. The tenant had done this in the preceding month and the landlord knew it, or so it had been alleged. The issue was whether the landlord owed a duty to the 10-year-old girl.

Whether there was a duty turned on the notice of the condition, and the opportunity to fix it. To impose the duty “the landlord must also have the opportunity and the ability to eliminate the dangerous condition being created by the tenant.” Rosales v. Stewart, 113 Cal. App. 3d 130, 134 (1980). In other words, the landlord must have not only a means to stop the tenant from firing his gun in this manner, but the landlord must have also had the chance to do so. So the means to prevent it here could have been eviction. But whether the eviction could have been effectuated from notice of the condition to the time of the gun discharge causing the death would determine whether there was an opportunity to correct the condition.

So if the landlord only learned about the prior gun shooting incident a day or two before the death, he may have had a notice and means to prevent the death. But he would not have had the “opportunity” because one cannot usually evict his tenant in two days. There was no duty in that case as alleged, because “there was no allegation that the knowledge by the landlord preceded a renewal of the tenancy … or that the rental agreement could otherwise have been terminated prior to the injury.” Rosales v. Stewart, 113 Cal. App. 3d 130, 135 (1980).

That was not the end of the story, however. The appellate justices allowed the plaintiffs an opportunity to re-draft their allegations to include opportunity for the landlord to correct by eviction or some other means. We do not know the outcome after the case was remanded, but it is likely that the plaintiffs would have to have the lease agreement in hand or a good working knowledge of local eviction laws. The opportunity allegations would hinge on whether they could colorably state that there was an opportunity to evict in the short time between notice of condition and the death.

This blog submission is only for purposes of disseminating information. It does not constitute legal advice. The statements in this blog submissions do not necessarily reflect the opinions of Robinson & Wood, Inc. or its clients. No attorney-client relationship is formed by virtue of reading this blog entry or submitting a comment thereto. If you need legal advice, please hire a licensed attorney in your state.

By Ken Kmet, Condo Voice, Clearwater, FL

How do we fix our economy? FIX HOUSING! I’ll say it again, FIX HOUSING! Wait, let me say it louder, so you can all hear me, and they can hear me in Washington DC: FIX HOUSING! I always try to write the facts, and report on issues without any bias or affiliation. But these are historic times, and I will share my humble, two-cent solution to anyone who will listen (or read).

Can you think of another industry that tethers all other industries so much? Nope. Stimulate housing, and let me just list a few of the other businesses that will grow also: banking, accounting, lending, insurance, title work, surveyors, utilities, real estate sales, rentals, home inspection, pest control, and termite inspections, to name just a few. Construction and home improvement has to be broken down by itself into all its subcategories, including, but not limited to, general contracting, roofs, painting, paving, flooring, electrical, plumbing, furniture, appliances, windows, doors, siding, air conditioning, heating, insulation, solar, landscaping, tree trimming, irrigation, window treatments, hurricane protection, and I could go on and on. Then let’s take a look at personal property, the things people buy to decorate their homes. Also, how about when people do their own repairs and improvements, and the purchases they make to do that, and what industries they stimulate. Ask yourself a question: Do you make a living either directly or indirectly in one of these industries? The answer is probably yes.

When I say fix housing, I mean it will make cash registers ring and new jobs will be created in all the industries mentioned here, and more, which in turn will increase the GDP rate, which will pay down the debt, get people off extended unemployment, secure entitlements, allow for careful reduction of wasteful government spending, increase tax revenues for governments large and small, restore consumer confidence, and restore hope to the corporate community, which will in turn give them the confidence to spend their trillions in cash reserves, investing in their companies, buying hardware and software, creating new jobs, hiring new employees, and buying everything they need to grow. I could go on and on how the ripple effect of repairing housing will save our economy, but by now THAT SHOULD BE OBVIOUS! (Yes, as I am typing this I am screaming it!)

Also, fix housing and communities will be healed in many ways, helping to lift the financial burden of those homeowners within those communities that have been carrying the load for their vacant, deadbeat, and non-dues-paying homes and members. Lenders can take back those properties finally, and become dues-paying, responsible members of those communities.

I have no love at all for lenders and mortgage holders that have deliberately delayed their moral obligation to foreclose homes and condominiums in a timely manner, regardless of whether there is equity or not, which deserves its own conversation. But I digress. Just to say that this process would allow responsible homeowners in condominium associations, HOA communities, and other community associations (our audience here at condovoice.com) more money in their pockets to make cash registers ring elsewhere.

To those who say, wait just a minute, housing got us into this mess, I say … it is ironic, isn’t it? But I say, it wasn’t housing that was the problem, because we all need it, that and food and clothing. It was the greed and corruption of people that took advantage of the system for their personal gain that were the fault, not housing. Housing is a need, not a luxury. It can be an anchor … a lead weight that drowns us, or a lifeboat that saves us. Either way, we MUST deal with it.

You’ve heard all the talk about December 21, 2012, and the end-of-time calendars? Well, the tsunami wave, the celestial event, the signs from heaven may or may not come, but our economic ruin may come instead. Many are looking for signs of “the end of days.” Well, unless we FIX HOUSING, it may mean the end of a lot of things we have come to think we are entitled to in this great land of ours. Fixing housing isn’t just a way, it is the only real, lasting, credible way out of this mess we got ourselves into. It is politically neutral, it has facts to prove it works, it has the best bang for our buck, it is secure, it is long lasting, it is predictable, and it is something we and they can all agree on.

That’s what I think, anyway.

By Colin McCarthy, J.D., Robinson & Wood, San Jose, CA

Well my last post was so good I did not have the courage to write another. About six months ago we were discussing various scenarios by which a landlord could be held liable in California for injuries or property damage occasioned by her tenants. We discussed how, if she knows about a tenant’s animals’ dangerous propensities, she might have a duty to prevent injuries of property damage to others arising from such dangerous propensities. Citation to the holy hand grenade scene must have subconsciously made me think I had reached my pinnacle in blog writing material. No more blog posts! Until now.

What inspired this sudden turn of events? Alcohol. And a recent Buffalo Wild Wings beer with a Buildium person. As we discussed Buildium and life over beers, it occurred to me that I needed to re-engage the ATPM blog readers regarding the perils of tenants’ overindulgence in alcohol and resultant personal injuries and property damage. Is there liability? If the landlord knows the tenant has a gun and is a heavy drinker, is she liable if the tenant shoots someone while drunk? Is the drinker the equivalent of a dangerous dog?

In California, the landlord will not have a duty where she merely knows the tenant is a drinker and has guns. In one case, the plaintiff was a visitor of the tenants and was shot when the tenant was drinking. The landlord knew the tenant was a drinker and knew he had firearms. The landlord was not aware of any circumstances that suggested the tenant was dangerous with the guns when drinking. So there really was no notice to the landlord of a danger she should have prevented or been warned about. ”If the court concludes the injury was not foreseeable, there was no duty.”  Sturgeon v. Curnutt, 29 Cal. App. 4th 301, 306 (1994).  The court here concluded the injury was not foreseeable. And thus the landlord had no duty to prevent it. The landlord won.

In a similar case, a college was exonerated from civil liability for injuries sustained after some students got drunk and went racing.  I’m sorry — “became intoxicated” and “engaged in a speed contest.” In this case, the court held that it was not foreseeable that in-dormitory drinking would lead to an off-campus automobile drag race. The “conduct of students, without known violent propensities and without knowledge that they would drink to excess and thereafter operate motor vehicles, does not rise to the level of foreseeable harm as does a case where the tenant has a known vicious dog.”  Baldwin v. Zoradi, 123 Cal. App. 3d 275, 294 (1981).

Obviously, the appellate justices in that case had not seen the second-greatest movie of all time — Animal House.

This blog submission is only for purposes of disseminating information. It does not constitute legal advice. The statements in this blog submissions do not necessarily reflect the opinions of Robinson & Wood, Inc. or its clients. No attorney-client relationship is formed by virtue of reading this blog entry or submitting a comment thereto. If you need legal advice, please hire a licensed attorney in your state.

By Linda Day Harrison, theBrokerList, Chicago, IL

Absolutely! Why, you ask? It’s not a bunch of boring legal stuff that is neither cool nor sexy. Heck, it’s not even about marketing, technology, social media, or anything current or trending, as they say. Or is it?

I think it’s very cutting edge to act ethically, and above all, with the highest respect for your employer, clients, and customers. It’s not an easy track to maintain with all of the examples we see and hear about every day. Other people did it, so why not me? So-and-so was able to do this and they got away with it. Why should I walk the straight line? If they don’t know it, it won’t hurt them. Hey, I can e-mail documents, take files, and share information about my properties or clients freely! What’s the big deal?

Today more than ever, the world is becoming more and more transparent. Documents, information, and actions move so fast. You can’t hide, run away, or conceal your actions. There is e-mail, tweets, LinkedIn, and many other virtual business networks where your trail of activity exists. Use extreme caution. Ignorance is not bliss when it comes to this vital aspect in our roles as property managers, leasing agents, or company executives.

No matter what segment of the real estate industry you’re in, finance, marketing, management, operations, facilities, et cetera all require an intimate knowledge of ethics and how ethics work. Many of us belong to organizations such as IREM, NARPM, BOMI, REALTOR, CCIM, SIOR, and scores of affiliations that all carry a code of ethics to which you must adhere. If you don’t adhere to these codes, you may be sanctioned.

The timing of this topic is speaking to me as I teach an online BOMI International course, Fundamentals of Real Property Operations.  Chapter 1 is, you guessed it, Ethics! Just today I received a tremendous and timely report of Real Life Ethics Cases from IREM, which is a powerful document that should be required reading for all employees at every single real estate firm, whether it be leasing, property management, or brokerage companies.

If you do not have this IREM Real Life Ethics Cases document, it’s strongly suggested that you obtain it and distribute it for your entire staff to read. Additionally, study your favorite organizations’ codes of ethics and use them as a road map to create one for your company. Today with the advent of virtual networking and conversations moving at the speed of light, it is surely cutting edge to consider the impact of your communication and online interactions, and how they may or may not cross the line of ethics.

Here are some excellent examples to give you a good start on how the various facets of our industry address their respective member code of ethics:

IREM Code of Ethics
NARPM Code of Ethics
BOMI International Code of Ethics
SIOR Global Code of Ethics
CCIM Code of Ethics
REALTOR Code of Ethics

Host meetings or brown bag lunches to talk about what is acceptable within your company code of ethics and what is not acceptable. Make your statements clear and connect the dots to real-life examples of what can happen. Role playing can be fun and create bonds with your teams when working with this subject matter.

Again, I repeat, the study of ethics is truly cutting edge, and I believe it will start to take the front seat and be a hand-in-glove solution to many of our corporate policies as they relate to social media. I told you ethics was cutting edge! I am not steering you wrong!