09 April 2012
Q: I have an apartment building with a small work out area, kind of like a mini gym. There are a few exercise machines, a treadmill and some exercise mats. I've been worried about somebody hurting themselves and then suing me, claiming I was somehow negligent in maintaining the exercise equipment. I'm thinking about just turning it into a storage room. Is there any way I can keep the exercise room (the tenants really enjoy it), but eliminate the risk of being sued for negligence?
A: Up until very recently, the answer was no. Landlords, by statute, could not add exculpatory language to their leases prohibiting residents from suing them for negligence relating to the rental property. A recent appellate court ruling just might effectively change that. The court ruled that the prohibition should only relate to the core rental unit, and does not necessarily extend to a non-core amenity, such as workout gyms, a recreation room or other entertainment amenity. A release and waiver of liability for injury suffered in the apartment itself, the garage or parking area, a walkway or corridor would be ineffective. However, a properly drafted release and waiver of claims for injury suffered in a gym, recreation room or entertainment facility, or other non-core amenity would be effective. The case is fresh, the ink is barely dry, but the theory is well reasoned and should be upheld if challenged. This is good news for landlords in this crazy litigious world we live in.
Q: I have a tenant in the third month of a one-year lease. In his rental agreement, it provides permission for one dog weighing less than 40 pounds. I want to change the written agreement to prohibit the tenants from keeping pets. The building was just sold and the new owner does not want pets. The dog hasn't been a problem but as the manager, it is not my decision to make. My question is can I change the terms of the rental agreement with a Notice of Change in Terms of Tenancy to have the tenant remove the pet?
A: Yes, but the effective date of the change will be upon expiration of the lease. When a tenancy is for a fixed term such as a 12- month lease, during the term of the lease neither party may unilaterally change the terms and conditions of the lease with a Notice of Change in Terms of Tenancy. Although you have a new owner, the owner takes possession subject to any leases in effect. That is, the owner must honor the lease agreements entered into with the previous owner. Thus, the dog will be allowed to remain on the property at least until the lease expires. Upon expiration of the lease, the new terms can be imposed. Your tenant's option at that time would be to either remove the dog, or he may choose to terminate his tenancy by serving you with a notice to vacate.