'Room for rent' rules to live by

Rent it Right

Q: I own my home and have been recently widowed. I would like to rent an extra bedroom to a roomer, who will share the kitchen, living room and other common areas of the house. I want to make sure that when I advertise and interview applicants, I don’t set myself up for a fair housing claim. Do those rules apply to me? –Nancy C.

A: Your question is clear and timely. In our current economic climate, more and more people are saving money by sharing their living space (and, like you, many have personal reasons for bringing in a lodger, too). Unfortunately, the answer to your question is not so clear. In fact, you may find it very unsatisfying. But until the law changes, this is the best I can do.

Under the federal Fair Housing Act, landlords who live in a property with four or fewer rental units (this would include your situation) are exempt from all but one aspect of the federal law: They may not advertise in a way that indicates a preference for (or against) members of a protected class (race, color, religion, national origin, sex, familial status and disability).

And, there is an exception even to the exemption: You may advertise for a lodger of a specific sex (and you don’t have to specify your own sex).

So, for example, your ad can say, "Female roomer wanted," but it could not say, "Christian roomer wanted." If you asked a newspaper to print the latter, both you and the newspaper would be in violation of the law. Interestingly, if you placed the same ad on an Internet site that did not channel your specifications in terms of protected classes, you might just get away with it.

In practice, this means that while a landlord cannot practice "advertising discrimination" except on the basis of sex, he can discriminate on the basis of other protected classifications "at the door."

Many states, however, have more complex and restrictive fair housing laws, and this is where my answer becomes somewhat unhelpful. California, for example, also allows landlords who rent to no more than one roomer to advertise for a lodger of a specific sex, and it provides that certain owners who are renting to a "roomer" or "boarder" are exempt from the rest of the prohibitions against discrimination in housing.

But the exemption applies only if the owner makes no "discriminatory notices, statements and advertisements." (See: Gov. Code section Section 12927, subd. (c)(2)(A).)

The key word here, which distinguishes the California rule from the federal, may be "statements." It appears that as long as the landlord remains silent "at the door," he is within his legal rights to turn away an applicant because of race, religion and so on. But once the landlord voices his reasons, he’s made a "statement," which deprives him of his exemption from the anti-discrimination law.

No California appellate court has ruled on this issue, however (it’s the subject of only one administrative case handled by the Department of Employment and Fair Housing, Department of Fair Employment and Housing v. Melissa DeSantis. FEHC Dec. No. 02-12, Case No. H 9900 Q-0328-00-h, May 07, 2002.)

For this reason, it would be risky for a California owner to rely completely on this reading of the law.

For safety’s sake, you’ll be on solid grounds if you limit your preference in your ad to a lodger of a specific sex, but do not mention race, color, religion, national origin, familial status or disability; and you conduct your in-person interviewing in a way that’s designed to find a solid, stable and compatible lodger regardless of their membership (or not) in a legally protected class.

To be certain of the boundaries that apply in your state, there’s no substitute for consulting with a local lawyer well-versed in landlord-tenant law.

Q: I’m about to sign a lease for a small commercial space where I can set up my woodworking business. The lease has a clause in it that says I will be responsible for anybody’s injuries unless they were caused by the "sole negligence" of the landlord. I’m a really careful businessman and tenant, so do I need to worry about this? –Wes L.

A: Yes, you do need to worry about this clause. If it’s ever tested in court, chances are that a judge wouldn’t uphold it. But in the meantime, it could cause you a lot of headaches. …CONTINUED

You’re dealing with a variation of what’s known as an "exculpatory" clause. In its purest form, its purpose is to shift to you the consequences of your landlord’s careless acts. So, for example, if your landlord knows about a dangerous condition in your rental and fails to take reasonable steps to fix it, and you or a guest were hurt as a result, an exculpatory clause would presumably get your landlord off the hook.

After reading this description, many readers will conclude, "Not fair!" That’s the conclusion of many legislators and judges, too, who have found that these clauses are a bad idea because they operate as a disincentive for landlords to take care of business.

Though most landlords will maintain their property because they don’t want people to be hurt, some are also motivated by a desire to avoid being sued or having to deal with claims against their insurance policies.

If the consequences of their carelessness lands at their tenants’ doors, landlords will have little incentive to perform needed maintenance, and the risk that people will be hurt will go up. This result is against public policy, so many states will not enforce such clauses.

The clause your landlord has used is a clever but probably doomed variation on the classic exculpatory clause. He’s said that he will be responsible for the consequences of his negligence only when his act is the "sole" reason for the injury. But what if both you and he are at fault? In this situation, you’d pay his share, too. And that’s just as contrary to public policy as a pure exculpatory clause.

For instance, suppose you know that the roof over your shop is leaky, and that water puddles in the entryway during a rainstorm. Even though you’ve repeatedly alerted the landlord, he’s failed to fix the roof. Now, suppose a customer comes in on a rainy day and slips on the wet entry, injuring herself.

Both you and the landlord are likely targets for a claim or a lawsuit, because each of you failed to take reasonable steps to fix or prevent the injury: The landlord should have mended the roof, and you should have mopped up the water or at least posted effective warning signs or tape alerting visitors to avoid the area.

But under the landlord’s clause, you’d end up paying the entire claim or judgment.

You’ve described yourself as a careful person. Fair enough, but you don’t tell us whether your landlord is similarly prudent. Even though it’s unlikely that you’ll end up being sued by injured customers, it would be a mistake to leave this clause as is. The worst words you ever want to hear — and you’ve just written them — are, "It’s never going to happen." Lawyers call this phrase a prediction.

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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