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Posted in Premises Liability on November 10, 2017   |  by Gary Burger

Sneaky Apartment Lease – Look Out For Non-Liability Clause

Recently, we defeated a Motion for Judgment on the Pleadings for one of our clients. Michael slipped and fell on ice last winter at his apartment complex when a water main ruptured and the management did not thoroughly clear the ice.

Michael’s landlord had attempted to dismiss the case because there was a non-liability clause hidden in his lease.

Before signing, you should carefully read any lease or contract for a release or what is also known as a "you can't sue us" clause. Although disfavored by the courts, they are often enforced.

The Missouri Supreme Court found in Alack v. Vic Tanny Inc., 923 S.W.2d 330 (1996), that non-liability clauses must specifically state that the signer is waiving claims for negligence, and such clauses must be set apart and highly visible to the signer.

We were able to prove that the non-liability, exculpatory clause in Michael’s lease was hidden and was also unfairly vague. But others who sign contracts with these kind of clauses may not be so lucky. Therefore, it is very important to consult a knowledgeable attorney before signing any important documents.

Residential leases are usually quite unfair to tenants and many contain non-liability clauses. Renters would never sign the contracts if they really knew what the non-liability clause meant and if they had bargaining power to negotiate. It would be helpful if the Missouri courts would revisit the validity of such non-liability clauses, especially in the context of lease agreements.

Moreover, in 2007 a Missouri Court of Appeals found that non-liability clauses are unfair because there is no negotiation or bargaining. The court stated, “Allowing the use of exculpatory clauses in residential leases stems from the idea that residential leases are essentially private contracts; however, it is unrealistic to ignore the present day realities of the landlord-tenant relationship. There is rarely a negotiation in a private residential lease where bargains and concessions occur until an agreement is reached.” Milligan v. Chesterfield Village GP, LLC, 239 S.W.3d 613, 616 (Mo. Ct. App. 2007).

Now we are waiting to have our day in court for Michael.