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

I saw and liked the latest James Bond flick. I say latest and not “new” because I realize it was released last year and by now everyone is discussing Django Unchained. I will be ready to discuss that film in six months, when I have time to see it. Skyfall was good, but something about it bugged me. In discussing it with my brother and reading some reviews after the fact, it occurred to me: it wasn’t any fun. It was so serious! Who wants to see a drunk, depressed James Bond? Not me. He didn’t even say “Shaken, not stirred.” They just showed the bartender shaking the martini.

Fellow blog persons, as we look back at 2012, I hope I avoided Skyfall syndrome. This should be fun. Even though we discussed some serious stuff, hopefully we had fun. We have pretty thoroughly discussed the types of situations that can lead to landlord liability for injuries or damages to others, and the circumstances for attaching liability. It’s all about notice, control, and the opportunity to correct people. Having thoroughly flogged that horse to death, we’re going to shift gears and start talking about issues to look for in defending against such actions. There are (as usual) three main areas we’re going to look at. See? This is fun!

First, we’ll delve into some detail about which persons or entities are the “landlord” for purposes of imposing liability. Is it the owner, the lessor, the sub-lessor, or all three? What about the person who sold me this money pit? Can the former owner be roped into this instead of me for that obvious hole-in-the-floor trip hazard? What about the vending machine operator who maintains the soda machine that tore that guy’s hand off? Or the HOA? Which among these various entities will be on the hook?

Next, we will take a look at some potential laws (i.e., “statutes”) which provide defense (“immunity”) to such liability suits. Many states, including California, have various laws on the books which will provide the landlord defendant with a complete defense to an action wherein liability would otherwise be imposed. In other words, even if the landlord had notice, control, and an opportunity to fix, in certain circumstances the law will exonerate the defendant for public policy reasons. One such law in California provides immunity for serving booze at parties under most circumstances, so as not to mute one’s inclination to have parties. (I think a certain Buildium man’s birthday is coming up in February and I intend to celebrate it — with or without him.) We’ll talk about some of the more obvious ones to look for.

Finally, we will bust out the old case books to talk about some other defenses a landlord/owner can raise when sued. The common law of American jurisprudence and its origins in English law offer up a “plethora”* of other defenses that can be raised to defeat claims against a landlord/owner for actions. These are some concepts like “the firefighters rule” — sounds exciting, doesn’t it?!

That should take us through a good part of the year. Thanks for reading, and hope I don’t bore you.

*Virtual high five who can name the movie in which that word was used in the following context:

“Would you say I had a plethora of birthday gifts?”

“Oh, yea, boss, yea. I would say you have a plethora of birthday gifts.”

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

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 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

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 Salvatore Friscia, San Diego Premier Property Management, San Diego, CA

In a recent notice received by our legal counsel addressing this very issue, apparently if you own rental property in California the scary answer is yes! The great state of California is widely known as a pro-tenant state when it comes to tenant-landlord related issues. Many cities such as San Francisco and Los Angeles are saddled with pockets of rent controlled areas making investment opportunities less attractive. They also have unfavorable statewide eviction laws that allow deadbeat tenants to continue residing in properties months after defaulting on rental payments.

So this should come as no surprise that according to state law if the tenant is licensed by the California State Department of Social Services (DSS) it only takes a thirty day written notice of their intent to legally start and operate a day care center without the permission of the landlord if the total number of children under care, including the children of the tenant, is limited to six. In fact, permission from the landlord is only necessary if the tenant chooses to increase the total number of children under care to eight. The licensed provider does need to have adequate insurance or be bonded. They must simply provide each parent, in writing, a notice that states the landlord’s insurance will not cover any issues should they arise – how reassuring. In fact, the landlord’s only recourse is that they can require the tenant to increase the security deposit to the maximum allowed by law. This is two times the rental rate if unfurnished and three times if furnished. The landlord is unfairly burdened with extra cost including, but not limited to, increased fees in liability coverage, out of pocket expenses for extra precautions to limit potential dangerous issues, and increased potential for additional wear and tear on the subject property. Most strikingly, the landlord loses control of determining if they approve or disapprove of this type of rental relationship. If they act by refusing to renew the rental agreement they run the risk of inviting a retaliation lawsuit from the tenant! This brings me to ponder a couple of questions, has the state overreached in providing this tenant right and does that seem like a fair exchange for the landlords?

The television shows mentioned in the previous blog are all great tools for gaining a better understanding of the real estate game. Following are some of Buildium’s additional honorable mentions.

• No frills, no acting, no drama … just some nice old-fashioned real estate rehab. This Old House is a time-tested staple of real estate television.
• Learn how to transform your property into a revenue producer with HGTV’s Income Property.
• Maybe a little different than your average rental, Bravo’s Million Dollar Listing follows high-end real estate brokers as they try to move property in Southern California. Due to the economy, recent episodes have even showcased some high-end rentals.
• Don’t make the same mistakes as these Property Virgins on HGTV; learn from their house hunting lessons.
• Here is yet another fun show where investors take a piece of real estate, smash it up, and create a masterpiece.  Flip This House on A&E is the perfect Saturday morning pick-me-up.

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Staying on top of local eviction laws is a must. Following are links to some municipality and state eviction statutes (remember to always consult an attorney).

• Manage Property in California? Learn about California eviction law from the source—visit the California Department of Consumers Affair’s eviction Process website.
• Floridians can click here to learn more about evicting in the sunshine state.
• Everything’s bigger in Texas … are evictions too? Review Texas eviction via the Texas Tenant Advisor.
• The New York City Department of Investigation provides answers to frequently asked eviction questions.
• Buildium’s home state of Massachusetts’ eviction laws can be found here.

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• The latest batch of tenant horror stories are enough to make any property manager (or property owner) crazy.
• And now the flip side: landlord horror stories from a tenant’s perspective.
• Some tenants are a mess. It’s important to take all the right steps when choosing a tenant cleaning service
• The Democratic National Convention was held in Denver last week. Barack Obama discussed many topics, but are you in the loop about his housing plan?
• More states should have HOA organizations. The Executive Council of Home Owners in California is a great one.

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