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The Royal Society for Putting Things on Top of Other Things

Horseback RidersBy Colin McCarthy, J.D., Robinson & Wood, San Jose, CA From time to time, a property owner or possessor will give permission to others to use or rent out parts of her property and put things on it. A soda machine, a vending machine, a gas line, or even a pipe trestle. Those who use that land in this manner have a duty of care to third parties to prevent injury. The same duty that the possessor has. Here is a fun fact pattern. The land possessor runs a horse farm. He rents out horses to be ridden on the property. A customer asks for a mild horse. The land possessor gives the customer what he believes to be a mild horse. The customer takes said horse out for a ride. Said horse is not mild. Said horse goes where it wants to go and takes the customer along with him. Injury ensues: "Plaintiff and his wife rode under the trestle along the indicated road, with plaintiff's horse in the lead. After proceeding about 400 feet to the north at a walk, plaintiff turned his head to the left and called to his wife. As he made this movement, plaintiff's horse suddenly reeled about to the left and began racing back on the road toward the trestle, gaining speed as it went. Plaintiff attempted in vain to control or stop the horse by pulling back on the reins as hard as he could with both hands, but the horse kept going......
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Danger in the Basement? Rent It Out

Scary BasementBy Colin McCarthy, J.D., Robinson & Wood, San Jose, CA So in American Horror Story, after some certain traumatic events occur and the building's history is uncovered, the protagonists STILL don't move out of the house. The writers are nuanced enough to know that the audience will ask the question "Why do they not move out now?" So they actually attack this head on. Money problems prevent both an immediate move-out and obstruct a potential sale. So because I like to think I am still more nuanced than the newly nuanced writers, I counter with: "Why don't you just rent the place out?" Somebody could move in and you could get paid for it. Not only will you get paid rent, you will also be removed from liability for injuries to third parties entering on the premises, the thinking goes. Well, the first part would be true. The second part -- non-liability of an owner not in possession -- is not as clear. We know from our previous entries that possession and control are big factors in imposing liability. An absent landlord is not necessarily in possession, and may or may not have control. The law we know trends to basic duty of care obligations. The out-of-possession owner must act as a reasonably prudent person in similar circumstances. They have to do those things that they can do to prevent injury, such as inspect the premises as permitted by the lease or between renters. You may be relieved while out of possession if there wa......
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Let's All Build Fences

FenceBy Colin McCarthy, J.D., Robinson & Wood, San Jose, CA I recently had a neighbor suggest to me that we jointly fund a new fence along my side of the property that adjoined his. The fence was dilapidated here, but nowhere else. I was open to the idea, but wondered why I should share in the cost if this was the only place my fence was having problems. On all of the other adjoining property lines the fence is fine. Why this one? Maybe because his property was six inches higher than mine on his side of the fence and was pushing into mine? Fences are frustrating. So why would you want to build one on property you rent? There would appear to be no common law duty in California to erect fencing to prevent entry onto your rented property to prevent injury or property damage. (Check your local laws to see if they are in accord). Some scenarios might compel it -- to keep third parties away from a pool or electrical hazard. But absent some kind of foreseeable danger, there would not be a requirement at law. Indeed, could it promote new obligations if the landlord builds a fence? Certainly, the landlord would have to maintain that fence, once built. He would not want to build a dangerous one. One with loose boarding. With nails sticking out. Or a ladder leading right to barbed wire. And if the landlord builds a fence on his residential rented property, he would......
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