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

Relationships. Everybody’s got them, but not everyone is liable for the actions of those in their relationship. We’re talking about “vicarious liability,” where the landlord is liable to a third party for the wrongdoings of someone or somebody it hired. This is a legal doctrine wherein the courts hold a passive actor responsible for the acts of another if there’s a relationship there and if the circumstances warrant imposing liability.

Here’s the doctrine. A landlord is almost always going to be liable for her employee’s negligent acts. In California there’s cases on it and a statute or two. (For all us working stiffs out there, remember, too, that in California the employer has to defend and indemnify you for negligent acts committed doing your job). As long as the employee does not stray from his duties and commit acts outside the course and scope — intentional acts that have nothing to do with the job — the employer will be liable for the employee’s act. If the delivery driver employed by a package delivery company runs someone down in a cross walk while delivering packages, the employer is liable. (As a practical matter, both the driver and the company are named as a defendant, but the employer is liable to the third party and foots the bill pursuant to insurance.) A landlord will also be liable to a third party for the acts of an independent contractor if there are particular risks involved in the activity being done by the contractor.

As with most legal doctrines, there is a thought process behind it. “The principal justification for the application of the doctrine of [vicarious liability] in any case is the fact that the employer may spread the risk through insurance and carry the cost thereof as part of his costs of doing business.”* So the landlord who employs folks to do maintenance around the yard, in the common areas, will be liable to the third party injured by the deficient work-related acts of that employee. Like the janitor that left the chairs near the window in a post a few months back, the doctrine applies.

There is an issue of whether someone is an employee or an independent contractor. Some businesses attempt to avoid the consequences of liability and other payroll obligations by classifying folks who do work for them as independent contractors. There is a whole body of law on that and what constitutes an employee or independent contractor. So we’ll talk about that in the next post, and then move on to some examples of landlord employees gone wild . . .

*Johnston v. Long, 30 Cal. 2d 54, 64 (1947)

This blog submission is only for purposes of disseminating information. It does not constitute legal advice. The statements in this blog submission 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

Years ago we all saw that movie about Facebook and how it took off when the founder had the thought that you could advertise your relationship status on “The Facebook.” Are you single? Dating a couple folks? Or in a relationship? (Colin McCarthy is in a relationship, a married relationship, with another Facebook user). It’s all about the relationships, people!  It’s not what you know, it’s who you know.

It’s not that you did anything wrong, it’s that you hired someone who did something wrong. Wait, what? What did you just say? Did you just say I can be liable for what my girlfriend, I mean my wife, did? No, I said you can be liable even though you did not do anything wrong, because you are in a special relationship with someone.

And when I say you, I mean the landlord. And when I say special, I do not mean romantic.  Ordinarily the law in California will not impose a duty on the landlord (or anyone for that matter) for the wrongful acts or omissions of someone else, absent a “special relationship.” For example, once your little children reach the “age of majority” (18 years), what they do, legally, most of the time can’t be tagged to you. But if there is a special relationship with the adult child (a history of custody and ability to control said adult child due to violent tendencies), there might be a duty to certain third parties.

A special relationship really is just the judge’s way of attaching liability to a deep-pocketed defendant if there are circumstances that warrant it.  Such a special relationship will make more sense when a person (or entity) works at the behest of (or on behalf of) another to accomplish that other’s work. A big factor in this relationship liability attachment is, as discussed above, control. But it is not determinative. What is determinative is whether public policy reasons (from those Rowland factors discussed a long time ago) merit the attachment of liability. Is the plaintiff severely harmed? Is there some moral culpability to the defendant’s conduct? Is it foreseeable to be harmed in such circumstances? Is there insurance?

The courts mesh these factors together in relationship cases and apply “vicarious liability” in cases “where the interests of justice demand it.”*  This is a broad phrase and a discretionary brush with which the court interpreting it has many options. We’ll discuss some scenarios in the next few blog posts in which landlords have to deal with the demanding justice of vicarious liability.

*Roberts v. Craig, 124 Cal. App. 2d 202, 208 (1954)

This blog submission is only for purposes of disseminating information. It does not constitute legal advice. The statements in this blog submission 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 Matt Donnelly, Buildium, Boston, MA

If your tenants don’t own pets, they’re in the minority. That’s the finding of a new Apartments.com survey, in which a full 75% of renters said they owned one or more pets. That’s up a staggering 32% since last year. Most of these pets are cats and dogs, with fish trailing behind at 6%. (Sorry, Nemo.)

Curiously, only 63% of renters who own pets said they were required to put down a pet deposit. The most common deposit was $200+.

What’s possibly more interesting is that 58% of renters who don’t own a pet still sought out pet-friendly buildings. They want to live near pet owners. Of those renters surveyed in 2013, 78% said they lived in pet-friendly buildings, up from 59% in 2012.

The trends are clear: More renters are owning pets, and more renters without pets are warming to the idea of living near them. Add to this the fact that 65% of pet-owning renters said they had some problems finding pet-friendly rentals, and it seems clear that having pet-friendly units could put your property at a competitive advantage. Put another way, if you’re not allowing pets, you’re turning away a large subset of renters.

Are the risks of allowing renters’ pets greater than the rewards? Do you allow pets in your units? Why or why not? Share your experiences in the comments section below.

(Note: The dog featured in the photo belongs to Buildium’s own Ian Pirro.)

By Matt Donnelly, Buildium, Boston, MA

A hotel is the traditional destination of choice for an individual or family going on vacation. But that seems to be changing. Today rental homes are all the rage, at least among U.S. travelers.

That’s the upshot of TripAdvisor’s fourth annual vacation rentals survey. Nearly half (49%) of those who responded to the survey plan to stay in a rental home in 2013 as opposed to a hotel, up 9% from 2011. “The survey results show that rental properties continue to be a very desirable accommodation option among U.S. travelers,” said Brooke Ferenscik, director of communications at TripAdvisor.

When asked why they were opting for a rental home instead of a hotel, 82% of respondents cited savings and last-minute deals as the two biggest reasons. In terms of benefits, those renting homes vs. hotels cited access to a full kitchen/laundry room (31%) and more living space (27%) as the two biggest advantages. And what do renters look for in a vacation home? A private beach (25%), amazing view (18%) and private pool (18%) topped the list.

So what does this all mean for you? Here are a few things to consider:

• Do you have any properties that might be suitable as vacation rentals? Note what prospective renters desire in a rental home.
• Think about staging or preparing the rental. Vacationers will be expecting a fully furnished and equipped home when they arrive.
• Will your rental be seasonal or year-round? In some markets it might make sense to lease the home during the off season in order to maximize your revenue stream.
• What will you charge? Note that vacationers want the feeling of a home away from home, but depending on the area, you may not be able to charge a premium price for the home. Consider what area hotels and even other rental homes charge. Also consider last-minute deals to fill vacancies.

What’s your experience with vacation rental homes? Please leave a comment below to continue the conversation.

Today online property management software company Buildium, LLC launched its new Property Management IQ website. The interactive site uses humor to measure people’s knowledge of property management terms, regulations, and best practices.

“Property management is a serious business, but a little sense of humor can go a long way,” says

Buildium Co-Founder Michael Monteiro. “With that in mind we created Property Management IQ – an interactive site that promises to make you laugh and maybe even raise your property management quotient along the way.”

After completing the test, property managers receive a score and a badge they can display on their website. They can also share their results on Facebook and Twitter and are automatically entered to win an Apple iPad 2.

To take the Property Management IQ test, go to www.propertymanagementiq.com.

By Phoebe Chongchua, SD Real Estate Help, San Diego, CA

It’s the kind of job that requires a lot of patience, and today being a property manager also requires keeping up with technology. Property managers work with many different personalities, which requires them to have some important skills that help make the job of managing properties a success. But they also need to keep up with where their future tenants are spending their time–online.

Get Social.

Interestingly, social media and technology play a critical new role in the job of property managers. Now, tenants and prospective tenants aren’t just stopping by to see a property; instead they’re on Facebook, Twitter, YouTube and other social media platforms learning about rentals in your area before they have even set foot in the neighborhood.

Through these and other social media sites, not only is information shared but also reviews and feedback about properties are posted. That’s why today many companies are hiring social media people to “actively” listen to the sites. It’s part of online reputation management and it’s good a way to see if and what people are sharing about your properties.

As a multi-media video journalist, I am often asked about how to respond when there is a negative remark about your company, product, or property. Should you roll up your sleeves and “fight back”? No. Often this will cause the person who is negatively commenting to start a full-blown war. The campaign can get very ugly and turn into an over-dramatized sensation.

My suggestion is to counter the attacks by addressing the issues in a positive manner and not necessarily right after the person leaves the comment. How do you do this? Article writing and posting on many sites is a great way to get the information you want out about your properties.

So, for instance, if there’s a negative comment about your property being poorly kept up, writing a post and showcasing with photos the well-manicured property and its unique attributes is a better way to convey your message.

Resist the urge to fire back a comment that sounds defensive. Instead, think of the negative comment as a question: “How well maintained is your property?” Then write your post. Of course, this is assuming that you are keeping your property in good shape!

Give it to them Quick.

Quick Response (QR) codes are showing up everywhere. How important are they to the property manager’s job? Very. These little codes can help carry vital information to prospective tenants, when used appropriately.

QR codes are used by people with smartphones. They download a free app and then scan the code which is linked to a website page. You can create a QR code very easily and for free using online resources; just search for free-sites to create your code.

The QR code is meant to provide information to the user in a quick fashion. In order to be useful, the information must be valuable. So, if you link the QR code to a video that gives good information about your property, that’s useful. If, on the other hand, you embed a faulty link or the link just opens to a generic website, the QR code can be seen as nothing more than advertising–useful to some, but others may feel it was a waste of their time to scan the code.

Placing a QR code on your brochures, business cards, and marketing materials with helpful links to very valuable information such as frequently asked questions, videos of your properties, etc. can be a big help for prospective tenants.

Pay rent online.

With so many people doing online banking, getting your residents to pay their rent online makes sense. There are many advantages such as the ability to schedule payments, automatic monthly debits, no hassling with paper, and being able to pay rent from anywhere instantly.

If you’re finding that your tenants aren’t as hip to signing up for the online rent-pay option, try using sign-up incentives such as a gift card to a local merchant’s shop or do a drawing from a pool of all the tenants who signed up that month.

Technology is nothing more than tools that can help streamline and better brand your business. However, it’s how you use them that determine how successful you’ll be as a property manager.

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

Over the last few posts, we’ve discussed premises liability, landlord duties, and obvious dangers, among other things. Today we’ll discuss an issue in California that gets people excited - a landlord’s duty to prevent criminal acts.

Nothing gets people more excited than the idea that a landlord might have an affirmative duty to prevent or intervene in the actions of a third party to prevent a person on his or her property from becoming the victim of a crime. On the face of it, this duty feels like it falls outside the scope of a landlord’s duties. Isn’t that the job of the police? A property owner can’t be a substitute for the police and common sense, the argument goes.

That may be true, but if we rely on common negligence principles – and California courts do – then liability can attach in certain circumstances for failure to take steps to mitigate against such third party criminal conduct.

The owner/lessor/occupier/person who controls the property has a “general duty [which] includes not only the duty to inspect the premises in order to uncover dangerous conditions, but, as well, the duty to take affirmative action to control the wrongful acts of third persons which threaten [persons on the property] where [he] has reasonable cause to anticipate such acts and the probability of injury resulting therefrom.”*

The key to attaching liability is the part about having “reasonable cause to anticipate” the criminal activity and the likelihood of harm. In other words, if the landlord knows that his rented property is being used by violent drug dealers to conduct criminal activity, he may have a duty to act. If the landlord knows that the lack of lighting in the property’s parking garage has contributed to muggings, he may have a duty to act to prevent injury.

The scope of the duty to act is tied to the knowledge of potential injury which would occur by the third party criminal act. As we’ve previously seen in my post about replacing window glass, the scope of the requested action there was very small: replace a window pane for $17 dollars. The duty imposed there was not to hire security guards to prevent murder, but merely to replace a broken window pane that was close to the door handle and lock. It is not unreasonable to think that someone might have broken into the house if the pane was not replaced.

A different situation arises if the integrity of the property is not an issue but knowledge of criminal activity is. Fights happen. A landlord is not usually liable for a one-off fight. But he may be if he knows that fights are continually occurring on his property. The scope of the duty for a landlord or business owner to provide something akin to security guards exists “only when ‘heightened’ foreseeability of third party criminal activity on the premises exists—shown by prior similar incidents or other indications of a reasonably foreseeable risk of violent criminal assaults in that location.”** Does the California rule make sense?

* Taken from Taylor v. Centennial Bowl, Inc.,  65 Cal. 2d 114, 121 (Cal.1966)
** Taken from Delgado v. Trax Bar & Grill, 36 Cal. 4th 224, 240 (Cal. 2005)

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

Let’s continue with figuring out the basis for how a tenant can recover against someone for an injury due to an unsafe condition on the property.

I say “someone” because as we have seen previously, it does not need to be the landlord who gets sued.  It can be the lessor, the “occupier,” or anyone who “controls” the property.  The last one may seem a bit redundant, but it is not.  Certainly the person occupying the premises exerts control over it.  Same for the owner.  Even if he is renting out the property, he has control over repairs accomplished, signs to be placed on it, fences to be built, etc.

But there can be situations in which a person does not own or occupy land, but nonetheless controls it.  In California, “a person controls property that he or she does not own or lease when he or she uses the property as if it were his or her own.  A person is responsible for maintaining, in reasonably safe condition, all areas he or she controls.”

Where does this situation arise? It does not arise from “simple maintenance.”  If for example, you were mowing a strip of lawn that adjoins your property but is not on it, this alone will not constitute control.  But “maintenance” is a factor to consider in control over the property.  However by itself, being “neighborly” in this manner will not usually constitute control such as to attach liability for an injury that occurs there.

I had a case once where we represented a landowner being sued for an injury that occurred off the property.  The plaintiff was leaving the premises late at night.  It was rural but close to urban, if that makes any sense.  Two of the publicly maintained streetlights were out.  An individual driving a car – he was probably overloaded on Vicodin due to a skateboarding injury he had recently had – forgot to turn his lights on.  The plaintiff did not see him due to the absence of his car lights and, possibly, the streetlights.  She stepped in front of the car and was badly hurt when the car hit her.  The driver did not have any insurance, so she sued the adjoining landowner.

Her initial theory was that our client “controlled” the publicly maintained streetlights which were out.  When I sucessfully objected on the grounds that an adjoining landlowner does not “control” the public streetlights, the plaintiff changed her theory.  Next, she alleged that two parking lot lights which were on our property were also out, and that if these lights were on she would not have been hit.

I almost had her out on this theory as well, but I will tell you about that over a beer sometime.  She was able to proceed and there was an interesting discovery involving witnesses to the accident and lighting experts- were the lights on or off?  Did the plaintiff’s counsel visit you, Mr. Neutral witness, at your house and show you pictures of the injured plaintiff before you testifified in this case? Was I there when this happened?

Ladies and gentlemen of the jury I submit to you that the lights my client controlled were on, and well maintained.  There may have been some public street lights that were not on . . .

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

Have you ever seen that warning sign about alligators? The one that says, “Warning: feeding, enticing or molesting alligators is prohibited.” You probably had the same thought as me. Really? Is that warning necessary? Don’t we all learn before kindergarten that provoking man-eating animals is hazardous to our health? That it creates “an unreasonable risk of harm?” What about the sign warning you that your hotel balcony on the 17th floor “is not on ground level” and you should not jump off of it? Seems pretty obvious, right? An owner/lessor/occupier/person who controls the land should not have to warn against that, right?

Right. Fortunately, California law allows for the exoneration of a property owner against warning against “obviously unsafe dangers.” Thus, there is no liability for failure to warn if the landlord can convince a jury that the following is true:

If an unsafe condition of the property is so obvious that a person could reasonably be expected to observe it, then the owner/lessor/occupier/one who controls the property does not have to warn others about the dangerous condition.

That’s good. So if there are alligators on your property you probably do not need to warn that taunting them is dangerous. However, if it is not obvious that there are alligators on your property, and you know people enter your property, you probably should warn about the presence of alligators (especially if you live in California because alligators are not indigenous and it would not be obvious).

But the obviousness of a danger does not necessarily end the inquiry. The owner/lessor/occupier/person who controls the land may still, nonetheless, have a duty to fix the condition or prevent access. The law looks at it from the perspective of the injured party. Is the condition so obvious that the injured person had to have known that injury could result if he proceeded? Even if there was some negligence on the part of the owner/lessor/occupier/person who controls the land, the obviousness of the danger will mitigate against liability. Most juries should agree that in proceeding into an obvious danger, even if there is no fence around it or no warning about it, you are putting yourself at risk and are primarily at fault if you get injured.

So even though you may not have to warn about a balcony on the 17th floor not being on ground level, you will need to have a code compliant railing at the level so that no one falls off of it. Hopefully the difference between warning about an obvious danger and mitigating against harm from it makes sense.

By Jo-Anne Oliveri, ireviloution intelligence, Brisbane, Australia

Over the years, I’ve had the privilege of working in all facets of the property management industry and, in doing so, have come to an understanding. An understanding reached after years of seeking answers to the following questions:

• Why do I do it this way?
• Why am I here?
• What is my purpose?

Much like the questions of life really.

I have a tendency to get pretty deep and meaningful, but all those years ago as I went to work every day and found myself confused on so many occasions, those were the questions I was asking myself and my teammates.

How did my teammates respond?

“Just because that’s the way we do it.”

“But why, why do we do it this way?”

“That’s just the way we have always done it.”

And then I would get that look – you know the one, the glare telling me to stop rocking the boat and just get on with my day.

Well that’s nigh on impossible for me. That’s like putting a penguin in amongst the seals and telling the little penguin that it’s really a seal and to think and act like one so the seals don’t get upset…and eat it. I can’t pretend to say or do things just because it’s the accepted way and not understand why it’s done that way!

Don’t ever give me that answer. It actually challenges me more. So, me being me, I ruffled feathers and even got up people’s noses. I simply can’t do things just because that’s the way it’s always been done. I must find out if it really is the best or right way to do something.

I upset a lot of people, but as time went on, I realized the people I upset were the ones who were stressed by change and perhaps came into the industry for the wrong reasons. The industry won’t grow if we simply keep doing things just because “that’s the way we have always done it.”

So, if you have those people on your team, gently take their hand and let them know that it’s okay, and in fact, easy, to go with change. Goodness knows, change is actually going to make their lives so much easier! Who would have thought! If you have these people on your team, what effect are they having on your business, team, clients, brand and reputation? Yes, a confronting question.

Let’s take it one step further. What effect are they having on the industry, our industry? The answer – a terrible effect. The industry on a global scale has a negative reputation and that frustrates me because that could so easily be changed!

But all is not lost. I’m throwing out a challenge. I want the industry to stop and think every time they complete a task, every time they interact with clients, every time they do anything within the scope of their day-to-day working life really. I want everyone to ask themselves, “Why do I do it this way?” I want teams to challenge themselves at team meetings and ask collectively, “Why do we do it this way?”

Let’s hear your answers. Let’s share ideas. Let’s debate and challenge those ideas. And let’s come up with the solutions that will change the way we do things and show our clients we are not stuck in complacency.

So tell me… “Why do I do it this way?”