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.
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