The Cleaning Service Overflowed the Toilet.
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Q1
I had hired an auction service to clean out one of my vacant rentals. One of their workers used the basement toilet and caused an overflow which put 7″ of water throughout the ranch home. My insurance will cover all the structural damage and drywall replacement but my rental policy does not cover contents. There was furniture, a pool table and there are several boxes of goods that the auction company has boxed, but haven’t removed yet. Is the auction company liable for the damage to my furniture and contents?
It is their worker who left on Friday with the toilet running. There was nobody else in the house. They were hired to clean-out the house for the next rental. Actually, they were going to pay me for the items removed. Where do I go with my damage claim?
A1
You should attempt to get the vendor to pay for the damages. Depending on the amount involved, they may be willing to contribute towards part or all. However, if you tried to get me to pay under such circumstances, my initial position would be that the damages were the result of your failure to properly maintain the toilet and a judge could very well agree with me. The vendor likely flushed the toilet and immediately left the area as do most people. Few, if any hang around to confirm that the toilet doesn’t leak or run unless already aware of a potential problem. Returning to me being the culprit, the result might be different if you could prove I knew my use of the toilet was particularly risky. I would almost certainly be liable if you had told me not to use the toilet because it was defective, if you could prove I had reason to know there was a problem, perhaps even if the supply valve had been turned off and I turned it back on.
You should certainly determine whether or not they have insurance that will cover the problem, as most real businesses would have coverage for error or basic negligence. However, even if they do, their insurance company might refuse the claim based on the same argument I would have used.
If you are unable to negotiate an acceptable solution when you approach them nicely, you can decide whether you want to proceed with a lawsuit, taking into account the cost of a suit and your chance of winning. Your decision may depend on whether the amount of damages will allow you to use “small claims court” or will require a significantly more costly venue.
In general, a landlord should always have coverage for furnishings that are included with the unit. In my 33 years of management experience, damages to furnishings are just as likely (perhaps more so) to result from things such as leaking roofs, failed plumbing (such as your case), or broken water-using appliances rather than either accidental or purposeful tenant actions. I always included specific lease clauses that explicitly made the tenant liable for water damages caused by a tenant-owned washing machine or other water using item and for water damages caused by landlord-owned washing machines and dishwashers that were left unattended while in operation. Insurance coverage of furnishings should include events that are (1) acts of nature, (2) the result of plumbing and appliance failures (whether the fault of tenant, landlord, or an agent of the landlord or tenant), or the theft or malicious damage by any party other than the landlord.
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Q2
If I want to remove a lodger from my property, can I do so immediately or is he entitled to a certain number of days notice?
A2
It will depend on which state you’re in and whether he is really legally a “lodger” as defined by your state’s law or instead legally a guest or a tenant. In most states there are specific facts regarding the occupancy that will determine the proper classification. The name given to the occupant’s residency is irrelevant. There are certain factors that can change a guest into either a lodger or a tenant or change a lodger into a tenant. Whether you need to give a certain number of days notice and even the number of days that might be required will likely depend on the correct classification of his occupancy. I would need to know more details in order to provide an answer.
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Q3
I need a form to extend a lease.
A3
We do not have a form to extend a lease, at least for the several states that I checked. However, it is not difficult to create an amendment document to change anything regarding the lease. Simply include information identifying the existing lease (names of the landlord and the tenants and the date of the lease), the date of the amendment, what term or terms are being changed, and a statement that all other terms of the lease remain unchanged. You could also have all parties sign a new lease using your existing form. Be sure that the same parties that signed the existing lease agreement sign the amendment or new lease.
In general, when changes are being made to a lease you can always either amend the lease or create a new document. It is usually best to create a new lease document when the number and complexity of changes being made is significant relative to the overall document. There are no set rules regarding the decision point, but for your case, with only one simple change being made, one would usually do an amendment. However, again, there is nothing to stop you from using a new lease if that seems easier to than creating a new document.
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