[disclaimer – the information in this blog post is for informational purposes only and should not be considered legal advice.]
As the calendar turns to May, we naturally start thinking about summer vacations. For many here in greater Philadelphia and beyond, as it has for decades, that means a trip (or more) to the Jersey Shore.
The COVID-19 pandemic, however, has left lots of those plans uncertain. Tenants are worried about whether it’s even safe to stay in a rental for some time, and some others may not want to go at all. Conversely, landlords may be wondering whether it’s safe to rent their properties, or whether they might be exposed to liability for doing so if one or more of their tenants is infected with COVID-19.
Those questions are complicated. Given how suddenly and quickly the virus arrived and spread, there is no direct law governing what a landlord must do for its tenants as to COVID-19. No law directly governs a tenant’s rights following the pandemic either. But a quick examination of existing laws provides excellent guidance to both landlords and tenants.
DISCLOSURE OF COVID-19 AT THE RENTAL PROPERTY
Of particular importance to the landlord’s responsibilities during and after COVID-19 situation is New Jersey’s landlord disclosure requirement. Landlords in New Jersey must make several disclosures to tenants prior to renting a property, including the presence of lead paint and asbestos hazards, floods, and structural damage. New Jersey also makes it incumbent upon landlords to disclose any latent defects affecting the “habitability” of the premises.
None of New Jersey’s disclosure requirements explicitly require a landlord to disclose information about diseases, or COVID-19 in particular, to prospective tenants. However, given the confusion and worry that the pandemic has caused, an argument could be made that the presence of COVID-19 at the rental property affects the “habitability” of the residence, given that the virus would likely detract a significant number of people from wanting to rent it.
As such, if a landlord knows, or has reason to know, that the property has been rented by, housed, or hosted one or more individuals who have been infected by COVID-19 or exposed to it, they should strongly consider disclosing this to tenants. This includes tenants who have previously signed leases for the summer season, as well as prospective renters who may be considering one or more open terms. The landlord should advise the tenants when the infected person or persons inhabited the property, how long they were there for, and any steps the landlord took to disinfect the property after the infected or exposed person(s) vacated it. Disclosure of this information would alleviate any potential liability flowing from a tenant’s subsequent contraction of COVID-19 while staying at a landlord’s property.
Similarly, tenants who have signed leases for the 2020 summer season, or prospective tenants, will likely want to inquire of their landlords whether the property has been exposed to COVID-19. Whether the lease can be cancelled based upon the presence of COVID-19 would depend on the language of each individual lease, and further negotiations between landlord and tenant. It may be necessary to consult with a lawyer to assist in interpreting the lease and negotiating a particular resolution.
Landlords should also review their existing insurance levels and policies applicable to their renters. They should consider and whether those policies would respond to a claim by a tenant of COVID-19 infection during or after the rental term.
CLEANING AND DISINFECTING THE PROPERTY
New Jersey law does not mandate that a short-term rental property owner take specific steps to clean the property in between tenancies. Nor does New Jersey require a landlord to guarantee a virus and bacteria-free living space at the beginning of a tenancy. That said, many shore properties are rented for the summer on a week-to-week basis, with the beginning of each rental week starting in the afternoon (often around 1-2:00 pm) on a Saturday and ending on the following Saturday in the morning (perhaps 10:00 am). Between rental terms, landlords often use cleaning services to clean the units and make sure they are in acceptable condition for the new tenants who will arrive in the afternoon.
This may have sufficed in previous years. However, tenants in shore properties this summer will understandably expect that steps be taken to thoroughly disinfect the properties in light of the COVID-19 situation. And, property owners in New Jersey are generally required to act as reasonably prudent landowners would act under the same or similar circumstances. As the circumstances change, what a reasonably prudent person would do likely changes as well.
COVID-19 certainly represents a change in circumstances that must be considered by landlords. To ensure that they are taking action in accordance with the “reasonably prudent” standard, owners should review their procedures to clean and de-sanitize their units to ensure that thorough cleaning measures between tenancies are being undertaken. Indeed, it may be that precautions previously taken to clean and prepare the rental unit would be considered unreasonable during the summer of 2020. Perhaps more cleaning steps or services are necessary, or that different products must be used, in order to give renters assurances that reasonable and proper steps have been taken to prevent COVID-19 exposure.
Similarly, tenants concerned about the presence of COVID-19 in their rental units should inquire about the steps being taken to disinfect the property before the tenancy begins. Landlords who want to ensure that their rentals go smoothly would be wise to listen to tenant concerns and be prepared to respond to them. A simple addendum to a lease agreement is quite helpful to document any additional measures requested by the tenant and agreed to by the landlord.
WILL I EVEN BE ABLE TO GO?
Tenants should also be aware that many municipalities have enacted temporary bans of short-term rentals to prevent further spread of COVID-19. At least two such towns—Seaside Heights and Asbury Park—previously extended their bans on rentals through June 1, and many others have advised that the bans may be in effect indefinitely (although others have signaled that short-term rentals will commence soon). Other shore points with boardwalks previously ordered them closed, and advised that they may not re-open until after Memorial Day, or later. A ban on a short-term rental may make it impracticable or impossible to rent the property. Tenants should consult their leases to determine whether a provision has been included, often called a force majeure clause, that would provide a refund in the event that they cannot inhabit the property through no fault of their own.
Each individual municipality in New Jersey may also have their own rules for rental properties that landlords must abide by. These may include additional disclosures that landlords must make, or rules that tenants need to abide by. Consultation with an attorney as to these rules may be helpful.
The hope is that the Jersey Shore will be open for relaxation, recreation, and business during the summer of 2020. But the pandemic should cause landlords and tenants alike to consider new aspects of their rentals that they may not have previously thought of.
Attorney Michael Lyon has reviewed lease agreements and landlord-tenant situations, and can assist in reviewing a lease, or potentially negotiating an addendum or compromise to it. Contact Mike for a free initial consultation.