Q: My son and his wife are three months into a one-year lease of a condo. Recently, the owners announced that they are selling the unit, and the agent has scheduled open houses two Sundays a month. The agent also advised them that he would show the unit on 24 hours’ notice.
My son and his wife have a baby, a dog and a cat, and my son works at home, which often involves participating in international calls that are set up weeks in advance. Expecting them to vacate two Sundays a month, and to be gone on one day’s notice, is not only inconvenient, it seriously interferes with my son’s ability to make a living. My son has offered to move out, but they won’t let him out of the lease. –Maria K.
A: There’s no doubt that having to put up with showings is one of the drawbacks of being a renter. Most of the time, you’re accommodating a landlord who wants to rent the place right after you leave, but sometimes, as your son knows, the interruptions are for buyers.
If the market is soft, for either renting or buying, more showings may be required to finally find a tenant or buyer.
Most states have laws that govern when, for what reasons, and with how much notice a landlord may disturb tenants in showing the property. Many states require landlords to give only one day’s notice before showing a rental. But most laws specify that, even if the landlord follows the rules for each entry, the entries must not be excessive when considered together.
For instance, in Washington, "A landlord shall not unreasonably interfere with a tenant’s enjoyment of the rented dwelling unit by excessively exhibiting the dwelling unit" (Wash. Rev. Code Ann. Sec. 59.18.150).
Some statutes instead say that tenants may not "unreasonably withhold" consent to enter, which implies that it might be reasonable to withhold such consent in some circumstances.
Unfortunately, while it’s easy to identify the extreme cases as excessive (an open house every afternoon, for example), there’s no simple, numeric test that will tell you how many showings constitute excessive interference.
Instead, a judge would look at all the circumstances — the landlord’s needs and those of the tenants — and decide whether the landlord’s plans are reasonable.
A judge might want to know, for example, what the open-house practice is in your area. Are two showings a month par for the course? If so, you might have to live with this. But showing the unit to individual buyers more than once or twice during the week might still be excessive.
Your son’s circumstances will be relevant, too. The presence of a baby, let alone pets, makes the intrusion significant. His work-at-home lifestyle is also a factor: It’s becoming more and more common to telecommute or work from home, and landlords need to recognize that their tenants are legitimately using the property as someplace more than just a perch to come home to at the end of the day.
What might be insignificant to a single tenant with no pets, who spends all day at work and the weekends out and about, could well be excessive to your son and his family.
Many states give tenants remedies when their landlords make it impossible to peacefully enjoy their homes. They may sue for damages, or just break the lease and move out. Their justification is that the landlord’s intrusions have been so numerous that the tenants no longer have "quiet enjoyment" of their homes.
Your son’s entitlement to quiet enjoyment is an age-old right that, when violated by the landlord, gives him the right to leave without responsibility for future rent.
If your son’s family decides to leave, make sure your son begins building his case now by setting out the facts in a letter to the agent and owner, explaining his dissatisfaction with the effect their intended showings will have on his family and his work.
He should repeat the offer to leave early and ask that the owner modify the showing plan. Your son’s family should be prepared to work with them if they appear willing. The owner would be well advised to negotiate with him.
If your son is forced to leave, the owner will have a rentless unit that, because it’s on the market, will be very difficult to rent (most renters would be leery of taking a place that’s going to be constantly shown to potential buyers).
If your son gets nowhere and decides to leave, keep in mind that the owner will surely keep his deposit to cover unpaid future rent. If your son wants it back, he’ll have to go to small claims court, where his paper trail will help him prove that he tried to work things out. …CONTINUED
Q: We rent a single-family home and have put a trampoline in the backyard for our kids to use. Our landlord, who is generally a reasonable man, told us to get rid of it, that it’s too dangerous. I can understand not letting us install something, but this structure is portable and doesn’t affect his property at all. If we supervise our kids’ use of it, isn’t it our problem if one of them gets hurt? –James V.
A: The way you’ve begun to answer your own question illustrates that there are two legal issues going on here. You’ve correctly analyzed one of them, but not the other.
Here’s where you’re correct: Your trampoline doesn’t physically affect or change the property. Unlike, say, a basketball hoop on a pole that’s cemented into the ground, the trampoline can be placed and removed without disturbing the landlord’s property. For this reason, tenants normally don’t need permission to place portable items like this on the property.
In contrast, the cemented basketball hoop would be, legally speaking, an "alteration," which you’d need permission to install. If you installed it without permission, your landlord could require you to remove it (assuming your lease has a "no alterations without consent" clause) and could terminate your tenancy if you refused.
To add insult to injury, the landlord could also insist that you leave such a basketball hoop in place at the end of your tenancy, because anything that is affixed to the rental property becomes the property of the landlord, unless the landlord has agreed otherwise. Because your trampoline doesn’t invade the property, however, it doesn’t qualify as an alteration.
But that’s not the end of the matter. Unlike other types of portable items, such as patio furniture or potted plants, a trampoline can be dangerous. A landlord generally has a duty to keep the property reasonably safe for tenants, their guests and any other legitimate visitor (as well as any pint-sized curious visitors, too — more on that below).
This is why the landlord must fix loose stairs, make sure vents work properly, keep the electrical system safe, and so on. You cannot absolve the landlord of these duties — in legalese, you cannot waive your right to a reasonably safe place to live.
For instance, you can’t say, "No thanks," when the landlord insists on replacing that funky, retro wood stove with vents that are prone to clogging (risking carbon monoxide buildup), no matter how inconvenient or disappointing it might be to lose that stove. Nor can you say that you’ll keep it and take your lumps if and when the stove causes a problem.
A trampoline, though not primarily an instrument of danger, is nonetheless a very dangerous toy. As far back as 1999 (and reaffirmed in 2006), the American Academy of Pediatrics recommended that trampolines never be used at home, in routine physical education classes, or in outdoor playgrounds. Thirty percent of trampoline injuries treated in hospitals are of fractures often requiring hospitalization. Spinal cord injuries and head trauma are not uncommon.
When two people use the trampoline at the same time, the chances of injury go way up. When one child bounces, the other child becomes a projectile and can easily be catapulted off the trampoline. The lighter of the two children is 14 times as likely to be injured as the heavier one, because the heavier one delivers significantly more force to the platform.
Proper installation of a trampoline involves placing the platform at ground level — for which, of course, you must have your landlord’s consent (it would involve digging a hole, which is an undisputed "alteration").
In light of these risks, your landlord has correctly identified your backyard trampoline as a "dangerous condition" on his property. He may be worried about his own liability should one of your children be hurt.
It would take some cheek on your part, to be sure, but it’s not entirely inconceivable that you could file a claim against the landlord’s liability policy if your child is injured on the trampoline, asserting that the landlord bears some responsibility for the injury because he allowed the trampoline in the first place.
And suppose a child from the neighborhood discovers the trampoline, uses it without adequate supervision, and gets hurt? Here, the landlord’s chances of being liable would go way up, because he might be seen as permitting an "attractive nuisance" — a dangerous condition, like an unfenced swimming pool, that is particularly likely to appeal to a child.
In short, your landlord’s concerns are valid. Surely there’s a way that your kids can entertain themselves without putting themselves at such risk.
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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