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

From time to time, a property owner or possessor will give permission to others to use or rent out parts of her property and put things on it. A soda machine, a vending machine, a gas line, or even a pipe trestle. Those who use that land in this manner have a duty of care to third parties to prevent injury. The same duty that the possessor has.

Here is a fun fact pattern. The land possessor runs a horse farm. He rents out horses to be ridden on the property. A customer asks for a mild horse. The land possessor gives the customer what he believes to be a mild horse. The customer takes said horse out for a ride. Said horse is not mild. Said horse goes where it wants to go and takes the customer along with him. Injury ensues:

“Plaintiff and his wife rode under the trestle along the indicated road, with plaintiff’s horse in the lead. After proceeding about 400 feet to the north at a walk, plaintiff turned his head to the left and called to his wife. As he made this movement, plaintiff’s horse suddenly reeled about to the left and began racing back on the road toward the trestle, gaining speed as it went. Plaintiff attempted in vain to control or stop the horse by pulling back on the reins as hard as he could with both hands, but the horse kept going faster, passed plaintiff’s wife and ran around the bend in the road toward the trestle. Immediately before the accident and at a distance of some 8 to 10 feet from the trestle, plaintiff noticed some underhanging beams stretching over the traveled area at a height of about 6 feet. Plaintiff was then lying flat in the saddle, with his head held down as far to the right as he could get it and his left shoulder pointing upwards. His left shoulder and neck hit a stationary object such as the understructure of the pipe trestle, and plaintiff blacked out. When he regained consciousness he was lying immediately to the south of the pipe trestle, approximately 5 feet from the nearest substructure of the trestle and immediately south of the traveled area under the trestle. As a result of the accident, plaintiff is permanently paralyzed from the waist down.”*

Not what the customer asked for or intended. Setting aside the interesting discussion of the owner’s responsibilities regarding knowledge of his horses in making recommendations (i.e., knowledge of the propensities), there is a holding in here that helps landlords defend against property-related lawsuits.

The parties installing that pipe trestle were defendants to the case as well, owing the injured plaintiff the same duty of care regarding that pipe trestle as the possessor. It turned out that there was no duty — again, due to the no-longer-applicable classifications. But the principle will help the landlord identify the culpable party in any such lawsuit.

*Palmquist v. Mercer, 43 Cal. 2d 92, 97 (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 Colin McCarthy, J.D., Robinson & Wood, San Jose, CA

So in American Horror Story, after some certain traumatic events occur and the building’s history is uncovered, the protagonists STILL don’t move out of the house. The writers are nuanced enough to know that the audience will ask the question “Why do they not move out now?” So they actually attack this head on. Money problems prevent both an immediate move-out and obstruct a potential sale. So because I like to think I am still more nuanced than the newly nuanced writers, I counter with: “Why don’t you just rent the place out?”

Somebody could move in and you could get paid for it. Not only will you get paid rent, you will also be removed from liability for injuries to third parties entering on the premises, the thinking goes. Well, the first part would be true. The second part — non-liability of an owner not in possession — is not as clear.

We know from our previous entries that possession and control are big factors in imposing liability. An absent landlord is not necessarily in possession, and may or may not have control. The law we know trends to basic duty of care obligations. The out-of-possession owner must act as a reasonably prudent person in similar circumstances.

They have to do those things that they can do to prevent injury, such as inspect the premises as permitted by the lease or between renters. You may be relieved while out of possession if there was no opportunity to inspect for new dangers. If the danger was added or formed after you left and you did not know or have the opportunity to inspect, there is a strong argument for relief. The defense is probably stronger in a commercial setting owing to the sophisticated nature of the tenant, the stronger lease language regarding duties, and an inability or obligation to inspect when a sophisticated commercial tenant is installed and alters the property.

In residential or commercial leases, the California courts have set forth their factors for determining the existence of a duty. These harken back to our very first discussions and the “Rowland” factors, for any of you paying attention. The factors are “likelihood of injury, the probable seriousness of such injury, the burden of reducing or avoiding the risk, and his degree of control over the risk-creating defect.”* All of this assumes the out-of-possession lessor knew or could have known about such risk-creating defects. If he did, the essence is, was there potential for serious injury and if so, could the out-of-possession owner get in there and fix the situation?

Perhaps because this area was not so clear, the ever-so-clever American Horror Story writers avoided the rental idea. Maybe they knew all about this.

*Brennan v. Cockrell Invest., Inc., 35 Cal. App. 3d 796, 801 (1973)

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

I recently had a neighbor suggest to me that we jointly fund a new fence along my side of the property that adjoined his. The fence was dilapidated here, but nowhere else. I was open to the idea, but wondered why I should share in the cost if this was the only place my fence was having problems. On all of the other adjoining property lines the fence is fine. Why this one? Maybe because his property was six inches higher than mine on his side of the fence and was pushing into mine? Fences are frustrating.

So why would you want to build one on property you rent? There would appear to be no common law duty in California to erect fencing to prevent entry onto your rented property to prevent injury or property damage. (Check your local laws to see if they are in accord). Some scenarios might compel it — to keep third parties away from a pool or electrical hazard. But absent some kind of foreseeable danger, there would not be a requirement at law.

Indeed, could it promote new obligations if the landlord builds a fence? Certainly, the landlord would have to maintain that fence, once built. He would not want to build a dangerous one. One with loose boarding. With nails sticking out. Or a ladder leading right to barbed wire. And if the landlord builds a fence on his residential rented property, he would have to maintain it to prevent little tykes who reside therein from busting loose onto adjoining property and getting injured.

Wait a minute. What? He would? Yes. If, say, there was a creek on nearby — but not owned — property, and the landlord put the fence up to keep his tenants away from the creek, the act of creating this fence is an act of exercising “control” over the adjoining land, thereby suggesting a duty to prevent injuries on that adjoining property. Cases in California have held a duty in such scenarios.

This is contrasted in those situations where there may be a dangerous condition nearby and the landlord does not erect a fence, such as near a busy road.  There, the landlord does not owe a duty because he did not exercise any control over the busy road by erecting a fence. The plaintiff, in one case which found no duty on the part of the landlord, ”was one of many children residing in an unfenced apartment complex that fronted on a busy road. He was injured when he walked off the premises, into the road, and was struck by an automobile.”  McDaniel v. Sunset Manor Co., 220 Cal. App. 3d 1, 10 (1990).

So is it better not to erect a fence at all? As we lawyers like to say, it all depends on the facts and circumstances of the particular property and tenants. Since ATPM blog readers are responsible types, there is a strong argument to be made that the erection of a fence to prevent injury on an adjoining property is not only the right thing to do, but one which will prevent injuries (and thereby lawsuits). These loyal readers will not let their fences fall into disrepair, and thus avoid the problem altogether.

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.

Summertime means it’s time to head outside and enjoy all the activities the season has to offer. And if your property provides amenities like a pool or grills, chances are your tenants are particularly happy at this time of the year. However, with these amenities come additional risks and hazards, many of which can be easily prevented with clear policies and a little bit of enforcement. Read on to find out about some simple measures that will help keep your tenants happy and safe during the summer months.

Pool Policies
Chances are at one point or another in our childhood, all of us were sternly told to “slow down” or “don’t run” by the pool. And, sure, it may have cramped our style a little bit but it also kept us safe. As a landlord, it’s your job to remind tenants about smart poolside practices—and to protect yourself from litigation that may result from pool-related injuries.

Make sure that rules and regulations for pool use are highly visible and that all your tenants know what is expected of them. Along with posting pool rules around the swimming area, you can also include the policy as a lease addendum to ensure that all tenants sign off on your property’s rules and regulations from day one. This addendum can include everything from basic rules to (if applicable) expectations on how tenants are expected to maintain the pool and surrounding area. A sample of this addendum can be downloaded here. In terms of pool signage, you can either make your own or visit a local hardwood store, most of which carry standard pool rule signage, particularly in the summer months. Common rules include:

•    Shower before entering pool
•    No food, drink, or glass in pool or on pool deck
•    No animals in pool or on pool deck
•    Pool capacity: _____ persons
•    Pool hours : ________ – ________
•    No running near pool
•    No diving or jumping
•    No children under ______ years of age without parent
•    No diapers allowed in pool

It’s not your job to play full-time lifeguard, but if you do see tenants violating rules and regulations by running or behaving recklessly in any sort of way, take it upon yourself to bring an end to the behavior. Pools can be a lot of fun, but they also present many potential hazards that no landlord wants to be held liable for.

Grill Guidelines
Aside from swimming, nothing else says summer quite like grilling.  Unfortunately for landlords, grilling brings with it a significant fire hazard. As with pools, it’s imperative that tenants know—and abide by—a strict set of grilling policies.

You will want to ensure that the grill is not within a certain distance of your property’s building in order to prevent potential catastrophe at the hands of flying sparks or an out of control flame. It should also be made clear that only adults are allowed to operate a grill. If you see any questionable behavior, don’t hesitate to take grilling privileges away from tenants. Clearly, a fire hazard is nothing to mess around with.

Noise Notice
With the days lasting longer and lots of outdoor fun to be had, more than any other time of year, it’s easy for tenants to get carried away during the summer, inadvertently disturbing other building occupants. Again, setting forth expectations or a noise policy in the lease is a good way to ensure that all tenants understand your rules and regulations. The early summer months are the perfect time to send tenants a reminder about building noise policies and expectations in terms of quiet times and noise levels.

Offering summertime amenities like swimming pools and grills is a great way to keep tenants happy and feeling good about their residency in your rental unit. Just be sure to guard against potential liability by making sure relevant rules and expectations are clearly communicated to and followed by your tenants.

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