It pays to accommodate tenants in property sale

Rent it Right

Q: We’re going to be selling our building, which will involve brokers and interested buyers looking at our apartments. Several tenants think we should give them many days’ notice and consult them when scheduling visits. Do our tenants have the legal right to make these demands?

A: Putting up with rental applicants evaluating a home’s potential or dealing with buyers eyeing the property during a sale are hassles every tenant encounters eventually. But most states give tenants some protections — more than half have laws that specify how much notice a landlord must give before entering a tenant’s apartment. Common periods are two days or 24 hours. Some state laws are less useful, requiring "reasonable notice," whatever that means. Notice requirements don’t apply to common areas such as the lobby, hallways and recreation areas. In these places, owners are free to bring visitors at any time and without notice.

So the first thing you need to do is to find out what your state law has to say about showing rentals to prospective buyers and tenants. But aside from your legal obligations to give adequate notice, let’s think about how you might accommodate your tenants in other ways, too. Don’t forget that uncooperative residents can have a real effect on how nicely your property shows — you don’t want grumbling residents pointing out deferred maintenance, do you?

Consider asking to meet with a delegation from the tenants’ group to discuss how this transition time can be made easier for them. Think ahead of reasonable requests that won’t seriously affect your ability to market the property, such as being willing to show the property at specified times and days. You might also consider modest rent reductions to compensate tenants for the disruption caused by the sale.

A savvy owner will make these concessions, realizing that cooperation by building residents is essential to marketing efforts and eventual sale — no seller wants to try to navigate a sea of resentful, gloomy residents, and no buyer wants to inherit a building full of angry people.

Q: I have been asked to sign a clause in a residential lease that states that the tenant agrees not to make any claims against the landlord for any loss or damage caused by "any accidents beyond the reasonable control of Landlord." Is this legal? –Davey R.

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A: Your landlord is attempting to avoid lawsuits brought by tenants who have suffered economic losses or injuries on the rental property. These claims often arise. For example, suppose your landlord fails to maintain a set of lobby stairs, and you fall and are injured. You might decide to sue for medical bills, lost earnings, and pain and suffering.

Fear not. In virtually every state, the clause in your lease would not bar such a suit. That’s because the clause shields the landlord only from claims that result from situations beyond his reasonable control. In our example, the monitoring and repair of the lobby stairs are obviously his responsibility, not yours, and not anyone else’s.

It might strike you as odd that landlords think it necessary to tell tenants that they won’t be held responsible for accidents that are beyond their reasonable control. After all, it stands to reason that we would make people responsible only for the mistakes that they could have avoided. But that common-sense conclusion will not stop some tenants from making a claim or suing, who think that any accident on the landlord’s property is the fault of the landlord.

For example, suppose the tenant parks in his assigned parking spot, but during the night a branch from a tree planted on the street breaks off and smashes his car. Thinking that because the damage happened while his car was parked on the rental property, the tenant demands compensation from the landlord or the landlord’s insurance company. In such a situation, unless the tenant can prove that the landlord somehow could have avoided the accident (Did the landlord know of the tree’s frailty and fail to warn tenants? Was the landlord legally obliged to monitor the tree and trim it?), the tenant won’t collect. But in the meantime, the landlord will have spent time and effort defeating the claim.

The clause in your lease is placed there to remind tenants that the landlord’s ability to avoid accidents is limited to those situations in which he has control. But don’t assume that the "control or not" question is always black and white.

In California some years back, a landlord was held liable when a tenant slipped and fell on a broken concrete pathway that led from the rental property to an adjacent street. Even though the landlord did not own the land under the path and could not have repaired it on his own, he was aware that his tenants regularly used it as a shortcut and failed to warn them of the path’s dangerousness. That was enough to make him at least responsible.

In the end, signing off on this clause will not defeat a valid claim brought by a tenant who claims to have been injured or economically damaged by the landlord’s carelessness. If the claim is bogus (suing the landlord for an act of God, for example), it will get tossed out of court. If the question is close, the court will resolve it, regardless of what the lease does or does not say.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at janet@inman.com.

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