Can Tenants Waive the Landlord’s Liability for Property Defects?

PROPERTY LAW TREATS COMMERCIAL TENANTS DIFFERENTLY FROM RESIDENTIAL TENANTS

For various reasons, California law often treats commercial tenants differently from residential tenants. Generally speaking, commercial tenants can waive the landlord’s liability for many types of property defects and conditions, and even for the landlord’s negligence, as long as the waiver is clear and unambiguous and contained in the rental contract.

Even in the case of commercial tenants, waivers are often narrowly interpreted and construed against the landlord in the case of ambiguities or confusion.

RESIDENTIAL TENANTS CANNOT WAIVE THE LANDLORD’S LIABILITY FOR NEGLIGENCE.

Residential landlords cannot use waivers or “exculpatory clauses” in tenants’ leases to escape liability for negligence or the failure to repair defective or dangerous conditions on rental property. Also, tenants cannot waive the landlord’s liability for intentional, willful, or reckless acts. If the landlord attempts to insert such a clause in a lease, and if the clause relates to the habitability or tenantability of the property, or to the “core” portions of the residential tenant’s premises, the law renders the waiver void and unenforceable because it violates public policy.

Tenants can sign waivers or leases containing clauses which exempt the landlord from liability for parts of the premises not related to the tenant’s core habitation–for example, common areas and “extra” facilities to which the tenant gains access through the lease but which are not part of the dwelling or other core premises leased by the tenant. However, even these waivers are not always 100% effective.

Landlords should not attempt to insert waiver language in residential leases releasing the landlord from liability for his or her own negligence, for breaches of statutory duties, or for willful or fraudulent acts. In fact, landlords should consult an attorney before preparing leases for residential (or commercial) tenants, because the law governs leasing contracts in many complex and important ways. In some cases, landlords may incur significant penalties for inserting improper language into a contract.

Whether you are a landlord or a tenant, always consult a professional–an attorney or (in appropriate cases) a licensed realtor–before preparing or signing a contract involving property.