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Renting out my condo, worried about attic liability

Posted by fotostat (My Page) on
Fri, Nov 13, 09 at 18:31

I own 2 units in my condo building, I am also on the board of directors of the association and will be the next president.

I would like to rent one of my units out, this unit is on the second floor and there is a very large attic above it. The attic is officially "common element" owned by the association, however, we allow people who own units with an attic above them to do as they please up there (within reason). One owner has a workshop, another has a large train set setup up there, another has a gym. Most people just use it for storage.

There is a couple sheets of plywood put down in the attic in question, but the rest is opened joists. I would like to allow the tenants that rent my unit to be able to use the attic. 900 square foot of space might be helpful in renting it out and possibly getting more money. My only concern is liability.

Is there any way that I can make a legal contract that allows them to use the attic, but clears me of any liability if someone steps off the joist and falls thru, or anything else that could happen?


Follow-Up Postings:

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RE: Renting out my condo, worried about attic liability

There probably is a way to word a clause in the lease to clear you of liability. You need to check with a lawyer.

But I think you'd be better off either a) not allowing access to the attic or b) installing some sort of floor in the attic to prevent anyone falling through. Then your lease could spell out what sort of use you would allow in the attic--storage only, living space, workshop, etc. Is there electricity in the attic? You don't want tenants running extension cords up the stairs and all over the attic.

As a tenant, I'd prefer a clear cut statement about the use of the attic, either I can use it or I can't. A warning about the fact that the attic is unfinished and I'm using it at my own risk wouldn't be helpful. I'd be wondering what else the landlord is going to be wishywashy on.


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RE: Renting out my condo, worried about attic liability

I agree with camlan. In addition, having someone sign a release of liability is probably not going to give you absolute immunity, and may even document that you had knowledge of a dangerous situation and didn't take care of it.

Renter to judge: "Yes, I signed a liability waiver, but the landlord never really explained to me how dangerous it was. I only went up in the attic because I thought I heard something up there, and then I fell through the ceiling. Now I'm in a wheel chair."


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RE: Renting out my condo, worried about attic liability

I've noticed a lot of upper floor condos and apartments have attics above them with unfinished floors. It is common for them to be off limits? I've never seen that is why I ask.

If I was to fall thru my attic right now, since it is actually owned by the condo association, I would have a good chance of winning in a lawsuit you're saying?


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RE: Renting out my condo, worried about attic liability

" The attic is officially "common element" owned by the association, however, we allow people who own units with an attic above them to do as they please up there (within reason). One owner has a workshop, another has a large train set setup up there, another has a gym. "

Since you are on the board of directors of the association and will be the next president, you should address this issue immediately, and get a clear cut policy written down on paper what the rules are for attic use for all owners. Verbal agreements always mean lengthy court battles down the road. Are ALL the owners aware of the present policy?? There should be an informational meeting, followed up by a vote, and then an official proclamation which is put down in writing.

If the attic is common, and the taxes, utilities, insurance and maintenance on it is paid for out of the common fund, there should be no personal use IMO.

What else is up in these attics? If there are AC units, heaters or even wiring and duct work up there, there is a chance that someone may mess with it. If they are just attics built to insulate, I would still question the use by residents who are putting HEAVY work out equipment up there that could cause structural damage, or running electric toys or workshops and businesses, in the attics. Who's to say that some of these attics have not already been converted to bedrooms that don't meet fire codes? Who's to say that an owner may dupe a potential buyer into believing that they are buying a condo that INCLUDES an attic and the new owners will consider it "theirs". I see trouble down the road and it is only a matter of time before something comes to a head.

Do these people realize that their tenants/homeowners insurance may not cover the stuff they have up there (depending on how their policy is written)?

I am curious..........how do these people enter the attic? Through their condos? Is there also another way into the attic that the maintenance people use? If the attic is common then could not anyone and everyone demand to use it? Are these attics inspected on a regular basis? A resident could create a hazard just by storing things up there.


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RE: Renting out my condo, worried about attic liability

"If the attic is common, and the taxes, utilities, insurance and maintenance on it is paid for out of the common fund, there should be no personal use IMO."

So you think we should close all the storage spaces in the basements, too? They are all common element as well.

"Who's to say that an owner may dupe a potential buyer into believing that they are buying a condo that INCLUDES an attic and the new owners will consider it "theirs""

It's the responsibility of the buyer (and their lawyer) to find out the rules and regulations of the condo association. One of the first things I asked about was the attic since it was such a nice big area. My lawyer found out that it was common element. I spoke to the seller who mentioned that I could do whatever I want up there, so I went to the president to confirm that. The president told me how officially it is owned by the association but the tenants living below each attic are able to use it. The same way as we are able to use the basements for storage.

"I am curious..........how do these people enter the attic? Through their condos? Is there also another way into the attic that the maintenance people use? If the attic is common then could not anyone and everyone demand to use it? Are these attics inspected on a regular basis?"

The attic is accessed by a scuttle hole inside of the unit directly below it. Only the people on the second floor have access to the attics, the people on the first floor do not have attics, this is a common occurrence since many condo's are built this way. There is no other way into the attic except thru the unit. There is no mechanical up there, the only electric is for the unit below it. The only other thing is old antenna wire strung thru the attics, other than that, there is no need for access.


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RE: Renting out my condo, worried about attic liability

"So you think we should close all the storage spaces in the basements, too? They are all common element as well."

That is silly. Are not the storage lockers assigned? Are they not written into the contract saying that all owners have use of the basement? If not, that would be weird. I've never rented a place that did not have assigned storage. Otherwise one tenant could hog the whole basement with their stuff leaving no room for anyone else. Neighbor fights start over things like this.

You have described a situation in the original post where some owners are using attics that are common for personal living use, and others do not have this same access to use the attics. This is not the same as EVERYBODY using a basement.

These attics are not written into the contract agreement. Right? The seller gave you verbal permission to use the common attic when you bought the condo. The President of the association gave you verbal permission to use the attic for your own purposes. Do you realize that he could "forget" that he ever said that?

Attic use should be in writing.

Say for instance the guy with the workout room in the attic has his friends over to work out or the guy with the train set has parties to show them off, and one of them falls through the weakened floor. Who do they sue?

As I mentioned before............are all the owners even aware of the situation? I can't see any of the first floor owners even thinking to ask if the owners on the second floor are running train sets up in the attic, or housing jungle gyms when they are viewing their condo for potential purchase. I would run this by at one of the condo association meetings. The first floor tenants have the right to know what is actually going on in the common areas since they will be liable for its use even though they themselves do not get to use it.

And yes, I agree it is a buyer beware and they must exercise due diligence when purchasing one of these condos. That does not mean that there won't be a court battle over a misunderstanding.

The other condo owners do not need the hassle of litigation.

Everything should be in writing. How hard would it be to draw up paperwork that puts everything regarding attic usage in black and white. This would be more helpful should any problems arise, than someone trying to remember a verbal agreement from years ago that a former condo association president said off the cuff.

If something happens up in the attic and there is nothing to go on except a verbal agreement that someones says they remember, or claims they don't remember it, will probably end up in court. When ever something goes to court there are no winners. Lawyers take all from both sides.


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RE: Renting out my condo, worried about attic liability

You are WAY off base here. Yes, the storage areas in the basement are unassigned, anyone could put whatever they want there. It is not in any contract, the basements are called "crawlspaces" on the plans. However, they are walkable and some people choose to use them

Yes, the attic spaces have been used by the second floor unit owners for almost 50 years, since 1962, without an issue.

Wow, the sky is falling, the sky is falling!

Like I said, it is EXTREMELY common in this area to see condos with only 2-3 floors and therefore hip roofs with attics above. In every case I have seen, the attic space is owned by the association, but allowed use by the tenant living below. And yes, I have been in HUNDREDS of these condos (I'm an electrician).

Anyone else who won't bring the drama?


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RE: Renting out my condo, worried about attic liability

"Is there any way that I can make a legal contract that allows them to use the attic, but clears me of any liability if someone steps off the joist and falls thru, or anything else that could happen"

No.


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RE: Renting out my condo, worried about attic liability

I think you are wrong and out of your mind, which is why I was asking for other people's opinions.


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RE: Renting out my condo, worried about attic liability

What I think is that you can't compare basement space, which is at least theoretically safe, with attic space, which is apparently dangerous. Even if you were to put in flooring, I would think you need to first find out about city and construction regs because if you put in the wrong thing (according to them), something which is not properly installed, or inherently safe from their viewpoint, and something were to happen, you could spend the rest of your life trying to pay millions of dollars in compensation. Just because it's been ok until now is not a reason to assume it will continue on that way.


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