Pools, ADA and Attorney Fee Provisions

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Q: I just put my single-family house on the rental market and have agreed to rent it to a nice family of four: mom, dad and two kids, ages two and five. The parents seem responsible enough and I’m sure they’ll make great tenants, but I am concerned because the house has a pool. Is there anything I can do to protect myself from liability should one of the children fall in and drown?

A:
The short answer is yes. There are several measures you can, and should, take to protect yourself. First and foremost, ensure that the pool and the gate/enclosure conform to all state and local codes and ordinances. The gate should be self-latching and should be checked to ensure that it closes properly.

Review your insurance policy with your broker to ensure that your coverage is adequate; consider an umbrella policy as well. Your broker can counsel you on coverage limits; consider $3,000,000 as a minimum. Finally, you should include as part of your rental documents an addendum to the lease in which the tenant acknowledges the dangers of the pool, agrees to ensure that all gates are kept closed, and agrees to periodically verify that the self-latching gate functions properly. Consider requiring that your tenants procure renters liability insurance as well. These requirements should be a part of your rental policies for a property with a pool, regardless of whether or not your tenants have children.

Q: A couple of weeks ago, one of my more senior residents fell and broke her hip. Her health has been deteriorating over the past several months, and this has really affected her mobility. She is now in a wheelchair most of the time. She’s lived in our community for many years and I’d hate to see her move; everyone loves her. Her son asked if I would take out the carpet and install vinyl flooring throughout the unit so that her wheelchair could get around easier. He also requested that I install grab bars in the shower and in the bathroom. He kind of implied that I must do it at my expense because of the ADA requirements, whatever they are. Now this resident is very sweet, but my husband and I are barely making it as it is. Do I have to pay to install vinyl flooring and grab bars in the apartment?

A:
No, you do not have to bear the cost; however, you must allow a disabled tenant to make reasonable modifications to the rental unit to the extent necessary to allow the tenant full enjoyment of the apartment. The resident must pay for the modifications, and the modifications must be done in a workmanlike manner. You can require the tenant to sign an agreement obligating the resident to restore the premises to their original condition upon termination of the tenancy. Although you cannot require an additional security deposit in this situation, you can require that the tenant deposit sufficient money into an escrow account, to be held for the benefit of the landlord, to assure that the premises are returned to their original condition. The money that is deposited into escrow is not a security deposit and is not limited by the two-month limitation.

Q: My rental agreement has a provision requiring that “the prevailing party shall recover reasonable attorney fees and costs in the event litigation is commenced.” It goes on to state, however, that attorney’s fees are capped at only $500. I’m thinking of crossing out this last part, I don’t want to limit my recovery if I ever have to sue the tenant. What do you think?

A:
Keep the provision as is. Do not strike it. Attorney fees provisions are important provisions and should be included in all rental agreements. The vast majority of litigation involves the filing of an unlawful detainer by the landlord against the tenant. Landlords prevail in 99.9 percent of all cases and should be compensated for their attorney fees expended. Attorney fees for evictions generally do not exceed $500, even in most contested matters. Remember, court costs are not attorney fees, are not capped, and get added to the judgment.

Most courts in Southern California calculate attorney fees in accordance with a court schedule, rather than actual fees incurred. Typically, courts allow $350 to $450 as recovery for attorney fees, even in a typical contested eviction.

The purpose of the cap is to dissuade tenant attorneys with too much time on their hands from demanding jury trials, and from filing frivolous lawsuits against landlords. If the potential for recovery is limited, the incentive to bring an action against you, the landlord, is greatly diminished.

Also note that when judgment is entered in your favor, and the judgment includes an award of attorney fees, then all post-judgment attorney fees are recoverable and can be added to the judgment during the entire period of time you are attempting to collect. Not only does your judgment accrue interest at the rate of 10 percent per year, but all those collection fees can be recovered as well.

Q: I’ve always heard that I should post my rental criteria in a conspicuous place so that applicants can plainly see whether or not they are qualified before they submit their application. I typically require that the applicants combined income exceed three times the rent; however, I might make exceptions. Also, in years past, a foreclosure on an applicant’s credit report was an automatic disqualifier, but after attending your tenant screening class, I have reconsidered. With so many exceptions to my rental criteria, my sign would be huge! How do I handle this?

A:
Yes, it’s a good practice to post your rental criteria in a conspicuous place. The details and specifics of your rental criteria, however, do not need to be included as these details and specifics are not necessarily static; that is, they may change or evolve over time depending on your situation.

For example, your three times income require ment may work fine if you have a single vacancy and a dozen applicants. However, it may be a bit too restrictive in a different economy or in the event you have three vacancies, your phone hasn’t rung in days, and you’ve only received a single appli cation in the past two weeks.

Every owner should establish the following as their general rental criteria. A qualified applicant should:
i) have a verifiable and positive credit history; ii) have a verifiable and positive past tenancy history;
iii) have sufficient and verifiable income to meet his or her present and future financial obligations; and
iv) should not pose a risk of harm to the rental property or to others. These general rental criteria can and should be applied equally and fairly to all applicants, and in compliance with all fair housing rules. Once applied, the best applicant should accepted, not necessarily the first to apply.


This article is presented in a general nature to address typical landlord tenant legal issues. Specific inquiries regarding a particular situation should be addressed to your attorney. Stephen C. Duringer is the founder of The Duringer Law Group, PLC, one of the largest and most experienced landlord tenant law firms in the country. The firm has successfully handled over 255,000 landlord tenant matters throughout California, and has collected over $155,000,000.00 in debt since 1988. The firm may be reached at 714-279-1100 or 800-829-6994. Please visit www.DuringerLaw.com for more information.

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