California Real Estate Lawyers Blog
It has long been the rule in California, stated in Civil Code §1953, that a residential landlord cannot require a tenant to waive their right to have the landlord take care to prevent personal injury. A recent decision addressed whether this rule against waiver applies to health club or exercise facilities provided by the landlord. The court found the landlord could indeed require a waiver of injury in using the exercise equipment.
The no-waiver rule is derived from a series of Supreme Court decisions concerned about waiver, or ‘exculpatory’ clauses, that affects the public interest. In cases generally suitable for public regulation, where the party is performing a service of great importance to the public, which is often a matter of necessity for some members of the public. The party seeking the waiver has a decisive bargaining advantage against members of the public. This is the situation in rental housing, an area of extensive regulation by the legislature.
Here, in Lewis Operating Corp. V. Superior Court, the tenant was injured on a treadmill in the recreation facilities of the landlord. There was a waiver in the lease applying only to the recreation facilities. The court looked at the facilities as being “noncore functions” of the property. It noted that courts have consistently enforced exculpatory clauses , releases, and waivers in the recreational context. Skiing, parachute jumping, and attending football games are not essential services affecting the public for this purpose. California law is designed to protect a tenant’s basic, essential need for shelter. This does not include exercise equipment, which is outside the basic requirement. The court found that there was no public policy violated by the waiver applying to the health facilities, and the waiver was valid.
How can the landlord protect themselves? Experienced Yolo and Sacramento County real estate attorneys will advise landlords to spell out in their lease waivers that the “noncore functions” of the property, such as swimming pool, exercise equipment, etc., are nonessential amenities. However, basic common areas, such as parking areas, lawns, and corridors, remain essential and are unlikely to be subject to a waiver of liability.