1

I happened to be looking through a new apartment lease and saw the following clause:

HOLD HARMLESS FOR GUESTS. To the fullest extend permitted by law, Residents agree to defend, protect, indemnify, and hold harmless Owner and Owner's agents against and from any and all claims, suits, liabilities, judgements, costs, demands, causes of action, and expenses, brought by Residents, Occupants, Residents' guests, and any other individuals in the Leased Premises with Residents' permission. If any action or proceeding is brought against Owner or Owner's agents by reason of any such claim, upon notice from the Owner, Residents shall defend the same at Residents expense by counsel reasonable satisfactory to Owner.

This appears to basically mean two things:

  1. The apartment cannot be held liability for literally anything.
  2. If a resident attempts to hold the apartment liable, not only must they pay for their own legal costs, they'd have to pay for the apartment's legal defense as well.

Are the two points above accurate, or am I misunderstanding the clause? Is there any way this type of clause wouldn't immediately be thrown out of court? This seems absolutely ridiculous on the surface, but it seems to be fairly standard boilerplate for an apartment lease.

1

Are standard apartment leases' hold harmless clauses legally enforceable?

The clause you posted seems mostly enforceable on the substance. The language "[any people] with Residents' permission" is key. Note that permission need not be explicit and can be inferred from the facts. The rest of the clause is "tautologically" valid since its scope is limited by the language "To the fullest extent permitted by law".

If a resident's guest harms others, those victims will try suing the guest, the resident, and the landlord for the sake of increasing their chances of recovery (typically in anticipation that the guest might be insolvent, non-responsive, or that he might try to shift the blame to others). Thus, the clause is intended to preemptively solve any controversy between the resident and the landlord as to who should cover the landlord's litigation expenses.

That being said, the clause is unenforceable to the extent that it attempts to preclude suits by residents for claims such as breach of contract and torts for which the landlord is directly or even vicariously liable.

The notion that a landlord "cannot be held liable for literally anything" is inaccurate. The clause does not exempt a landlord from liability that arises, for instance, from his negligence about keeping the premises safe. In fact, legislation in many states/countries prescribes landlord's obligations in this regard, and these statutory obligations are not voidable in a lease. Legislation supersedes contracts, thereby rendering the language "To the fullest extent permitted by law" completely redundant.

  • 1
    I think "to the fullest extent permitted by law", rather than being simply redundant, is an attempt to get the clause construed narrowly rather than tossed altogether when a court inevitably sees that it can't legally mean what it says. – D M Sep 15 at 14:31
  • @DM The inclusion of that boilerplate language is not what prevents how much of a clause is tossed out. What matters is the substance and scope of that clause. This is reflected in the Restatement (Second) of Contracts, where considerations of "the extent necessary to avoid injustice" are mentioned multiple times. – Iñaki Viggers Sep 15 at 15:16

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.