Q: My son and his roommate, both college students, applied for a rental that required a guarantor. I signed the lease application but never signed the guarantee. Am I responsible for rent and damage if the boys can’t cover the rent or trash the place? –Lori S.
A: Being a lease guarantor for a college-age son or daughter is very common. Landlords need to make sure that there’s a solid source of funds if the students, most of whom have little to no income, fall behind on the rent or cause damage beyond normal wear and tear.
But landlords need to follow standard legal rules when setting up lease guarantors. The landlord probably had you sign a lease application in order to obtain information about you — your income, place of employment, place of residence — that the landlord could use to make sure you’d be a suitable guarantor (someone with scant income won’t be too useful if the time comes to call upon the guarantor).
In addition, that signature probably signaled your consent to pull a credit report. Legally, landlords don’t need written consent as long as they have a permissible reason for pulling the report, but most landlords ask for written consent anyway because most people think it’s required.
But the next step is crucial: The proposed guarantor, if accepted, must sign either the lease itself or a guarantee agreement that references the lease. Because you apparently did neither, you have not become a guarantor. It seems that the landlord simply forgot to have you sign one of these two documents.
Not to impute sinister motives to the landlord … but take another look at that application. Make sure there’s nothing in it indicating your agreement to become a guarantor if the landlord finds you suitable. That would be a sneaky move, and I doubt that a court would uphold it: It would bind you to stand behind a lease that you haven’t seen yet.
That’s not an enforceable promise — people need to know what they’re guaranteeing before a court will insist that they step up.
Q: I believe the contractors working on our apartment complex damaged my wife’s car. I looked at the car carefully when I left for work early in the morning (I was intending to wax it), before the workmen had arrived. Two hours later, when my wife went out, it was damaged. But we have no eyewitnesses, and the contractors deny it. Our management company, after initially saying that their insurance will cover it, now says they aren’t responsible, though they have offered to pay my deductible if I agree in writing not to tell other tenants about the event.
But get this: The day after we made our complaint, signs appeared in the same area, telling tenants not to park there during construction. Isn’t that tantamount to an admission by management that they were negligent by not warning us earlier? I’m looking at $1,000 worth of damage. –Michael B. …CONTINUED
A: The first thing you should do is call your insurance agent and explain what happened. You’re dealing with a situation — damage done to your car by someone who doesn’t own up to it — that’s like a hit and run. Your uninsured or underinsured policy will cover you, though it typically has a deductible. The advantage of enlisting the help of your agent is that your insurance company will then have the option of going after the construction company for the money it had to pay you.
If the contractor turns this claim over to his insurance carrier, this will mean demanding reimbursement from the contractor’s insurance company.
Your insurance carrier, however, will face the same problem you describe: You have only circumstantial evidence to support your claim that the contractors did the damage. That’s not to say that circumstantial evidence can never support a claim — even a murder charge can be proved with circumstantial evidence. But the issue is how good the evidence is, and whether you’ve got enough of it. I suspect that the contractor’s carrier would deny coverage.
This brings us to your question about whether you can hold apartment management responsible for the damage. You’re hoping that the precautionary signs that appeared after your mishap amounts to an admission that they were negligent in failing to warn tenants not to park there in the first place, and are therefore to blame for the resulting damage. Alas, it’s unlikely that a court will allow you to make this argument.
As a matter of public policy, most states do not allow plaintiffs to introduce evidence of post-accident repairs or remedial measures as proof of negligence concerning the underlying accident. The reason for the rule is that we don’t want to discourage people from making repairs — and we want to avoid more accidents. For example, in a train accident that was allegedly caused by a length of rails being lower than those on either side, the plaintiffs sought to tell the jury that after the accident, the railroad sent a crew to the site, where they lifted the low section. This evidence could show that the rails were, in fact, lower than their neighbors, but it couldn’t be used to show that this differential proved that the railroad was negligent for not repairing it sooner. The injured passengers still had to prove that the low rails posed an unreasonable risk of an accident.
One interesting exception to the rule crops up when the defendant claims that nothing could have been done to prevent the accident. If the defendant found repairs to make after the accident, that probably counts as something that could have been done to prevent it in the first place, and the jury will probably get to learn about it.
Your best bet might be to take management up on their offer to pay your deductible in exchange for your silence. They doubtless don’t want other tenants to get the idea that any damage to their property, when done by unknown persons, will be covered by management, at least up to their deductible. Management’s fears are legitimate, and there’s nothing shady about agreeing to remain mum (people do it all the time when settling lawsuits).
Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at janet@sandbox.inman.com.
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