Are Massachusetts Liability Waivers Enforceable for Landlords?

slipping on iceWe had believed that no way, no how could a landlord get their tenants or their tenants' guests to waive their right to sue. Well, hold that thought.

We were recently pointed to some articles on the subject that affirmed the broad validity of liability waivers. If you sign a waiver to have your children participate in an event at their school, for instance, you might legally sign away all your rights to sue for a whole range of negligent behavior.

Generally waivers are good for anything less than "gross negligence". They will be upheld in court unless a statute says otherwise. Health clubs, for instance, have had a law made specifically against them (MGL Ch 93 Section 80), so they can't waive claims of negligence.

To our knowledge, landlords haven't had a law made specifically about waivers. We have lots of laws made about us. We cannot ask a tenant to waive away their rights to notice, to have their children live in a lead safe home, or to accept late fees in less than 30 days. You can never get someone to waive a right specifically granted to them by statue.

But there are a few other areas that may not be explicitly covered by the Mass General Laws and could therefore be waived:

  • Your guest policy could require waivers for anyone staying at night. Tenant guests are not your tenants and may not be covered under housing laws; could they theoretically waive their right to sue for slips, nuisance, or dog bites?
  • Your lease package could require a waiver in exchange for a job at the building. For instance, if you rent to a contractor who agrees to maintain the yard through his business, you might be able to get his business to indemnify you if he cuts off his toes while mowing. Keep in mind that because there is a law about unemployment insurance, this would not fly if you were employing an individual and not a company.

Bear in mind that we are not attorneys and we haven't vetted these ideas with attorneys. But it seems like there may be something to explore if you're concerned about reducing your exposure. If you use waivers, let us know!

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