Is Having a Tenant Sign a COVID-19 Release of Liability Form Legal?

COVID-19 has had a tremendous impact on all people in a variety of scenarios. People in landlord and tenant relationships are no exception.

A landlord might think that a COVID-19 liability waiver is a good idea, but is it legal?

In premise, there is no definite answer about the legality of these waivers. Here, we will cover the topic with a bit more depth so that you can make your own conclusions.

What is a Release of Liability Form?

A release of liability form, also known as a liability waiver, is a particular agreement in which one party gives up their right to sue another for damages. For instance, a rollercoaster park requires visitors to agree not to sue for injuries that might result from equipment malfunction.

Whether a liability waiver can be legally enforced is based on contractual law, which always varies from one locale to another. All waivers must unambiguous and clear, and they must be limited to negligent conduct.

A waiver is designed to exculpate an entity for any damage that is caused by intention or reckless conduct, meaning it is enforceable. However, there are some exceptions in which a landlord can still get sued, regardless of if the tenants signed the documents.

For instance, family members who get sick at your property and can prove it without a reasonable doubt can easily sue you for the liability you held to visitors. A COVID-19 liability waiver can be a great thing, but only if it’s necessary and delivered in an appropriate manner.

Are These Forms Legal?

As mentioned earlier, there is no definitive concept for their legality, since a COVID-19 waiver has not yet been tested in the judicial system.

In some states, liability releases are practically never enforceable.

Here are some scenarios in which a waiver would most likely be unenforceable:

1. Violates a health law
2. Violates public policy
3. Includes provisions for liability of reckless conduct via gross negligence

For instance, a waiver for recreational activity won’t violate public policy, but one to see a physician might. Similarly, a waiver to go and get food from a supermarket would be against public policy.

Furthermore, if state statues require certain regulations upon operation, and the business exceeds these regulations, a law has been broken. Not to mention, an individual might face temperament laws relating to the pandemic. As well as health department recommendations, which are not in fact laws.

Therefore, it’s unclear what would be considered a statutory violation. Additionally, many local and state rules are coming from an executive order, not a particular law.

COVID Waiver and Tenants

Because pandemics have not been a consideration of rental contracts, there is a question of legality upon such liability. The addendum that simple release forms that take into consideration these health recommendations are not unfounded.

For instance, in the state of Utah, a resident cannot use the pandemic to require more from the management team than that what is listed in the contract.

Furthermore, a management company or landlord has no obligation to report any cases. They don’t have to make notices about the virus either. While they are not required to provide supplies and clean common areas, it’s encouraged as a best practice to prevent disease spread.

It’s encouraged that management companies and landlords limit their other facilities and areas, as well as cancer all gatherings and discourage the use of amenities for them.

While a landlord can increase the sanitation of a selected area, it’s up to the individual to ensure they follow the guidelines.

So even though a COVID liability waiver is not illegal, it does have to be considered carefully. Otherwise, you risk bringing more downfall to your enterprise, rather than a benefit.

Practical Issues with the Waiver

Some practical concerns might make you think twice about using a COVID-19 waiver. For instance, your residents might be more hesitant to be communicative and proactive in their tenancy.

Moreover, any waiver they sign will not protect you from any lawsuits that can be filed by their families if they contract the virus while visiting the property.

A waiver might be unnecessary for some states that have granted immunity to landlords for claims made by tenants.

Even if they are not asked to sign the waiver, they will have a hard time recovering damages if they contract the virus at your property. They would have to prove that they were subject to infection at the property, rather than from external exposure.

Next, they would have to prove you’ve done something wrong. Given the nature of the contagious virus, you may have done everything right in terms of enforcing guidelines, but still, be unable to protect the tenants.

It can be hard to satisfy everybody’s needs, so you need to consider the potential issues that might arise with executing a waiver.

Landlord/Management Support

Now that you know that the release of liability form is not illegal, you can determine if it’s worth the effort to you. In any case, it’s your choice and if you really think about it, there might be no reason to create one. After all, some states have already granted immunity to landlords.

If you would like to learn more about the use of a COVID-19 waiver form, as well as consult with somebody who can elaborate on the benefits of having one, get in touch with us and we will happily accommodate your needs.