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

I once lived in a house in downtown San Jose that was next to an abandoned “historic” house. The house was only abandoned because it was “historic.” The city had an ordinance that prevented the owner from demolishing the building and rebuilding it, or selling it. Because the house was built before a certain time, the city ordinance prohibited him from doing anything with the property other than fixing it up. Rather than doing that, in protest, he did nothing with the property. And I mean nothing, other than board it up.

Mistake! You see it was downtown San Jose. It was right in the middle of urban, night time activities. The abandoned home soon became a sort of an attractive spot for the seedier and less fortunate souls. We frequently had to call the police. There were the typical late night guests, drinking, broken glass, and other non-printable activities going on in there. After enough of these visits, the neighbors reported the landlord to the city, and hearings were held. Fines were levied. Landlords got mad. Fences were put up.

Pulling the restrictive ordinance and the obstinacy of the landlord out of the equation, the landlord had a duty to know what was going on at his property. He should have inspected it, even if he did not have tenants.

What kinds of things can happen, from a legal perspective, if you do not inspect and repair? What will happen if the property falls into disrepair under your watch? Well, you can be sued for breach of contract. But if it gets really bad, you can be sued for a tort, too. How about for emotional distressed caused by an uninhabitable residence? For unfair business practices?

At least in California you can. Consider the facts in a case we cited in a recent post:

“Regarding the condition of the subject premises, appellant alleged that: ‘On or about October 8, 1974, to the present, numerous defective and dangerous conditions were in existence, including, but not limited to leaking of sewage from the bathroom plumbing; defective and dangerous electrical wiring; structural weaknesses in the walls; deteriorated flooring; falling ceiling; leaking roof; dilapidated doors; broken windows; and other unsafe and dangerous conditions. These defective conditions were unknown to plaintiff at the time she moved in to the premises, but as she continued to live on the premises, she became increasingly aware of them.” (Italics added.)

Also attached to the complaint was a copy of the Kern County Health Department’s notice to vacate and demolish the subject premises, which listed the following violations among others: heavy cockroach infestation, broken interior walls, broken deteriorated flooring on front porch, falling ceiling, deteriorated, overfused electrical wiring, lack of proper plumbing connection to sewage system in bathroom, sewage under bathroom floor, leaking roof, broken windows, and fire hazard.”*

Pretty bad, no doubt. But this particular landlord was sued not only for rent, but for the intentional infliction of emotional distress the tenant suffered. She repeatedly asked for repairs and informed the landlord of these problems. He did nothing. She informed him again. He did nothing. She did what all smart people do in such circumstances. She talked to a lawyer and sued.

At first it did not look good. The trial court limited her to breach of implied warranty of habitability, and limited her damages to rent payment. The appellate court disagreed, and allowed her to sue for all manner of civil wrongs related to the landlord’s alleged intentional neglect.

And although it’s not a discussion for this post, most insurance policies do not cover damages caused by intentional conduct. So not only was this landlord being sued, his insurance company might not have paid for any award against him.

So remember. If a tenant asks for a repair, don’t ignore. Inspect.

*Stoiber v. Honeychuck, 101 Cal. App. 3d 903, 912 (1980)

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