Georgia law gives tenants two years to sue their landlord for personal injury caused by the landlord’s negligence (but four years to sue for property damage). The Georgia Court of Appeals, though, ruled last week that a landlord can limit this two year allowance by placing a paragraph in the lease reducing the time to file any claim to one year. This is yet another negative legal development for tenants in Georgia.

In the case decided last week, an elderly tenant slipped on a crumbling section of a curb in the common area of the apartment suffering severe knee damage. When the tenant sued the apartment complex for negligence, the court ruled in favor of the apartment complex since a clause in the lease stated that any claim against the complex or owner must be brought within one year. The Georgia Court of Appeals upheld this ruling since the tenant failed to bring the action within one year.

Landlords have a general duty to protect tenants. They aren’t expected to protect tenants from every conceivable danger, but they are expected to take reasonable actions to keep their property in a safe state. This concept originates from basic common law standards we adopted from England requiring people to act reasonably when their actions (or inactions) could harm others.

Why Should I Care About This?

The decision limits a tenant’s access to the judicial system, particularly lower-income tenants who may have few legal resources. It’s also another example of how sophisticated parties routinely take advantage of ordinary consumers when legislative bodies fail to provide protections.

Typically, we may not care if two parties decide to make a deal where one party voluntarily agrees to limit a legal protection. The fairness of this scenario, though, depends on whether both parties have comparable negotiating power. In many common transactions, ranging from downloading an app to renting an apartment, the consumer often has much less negotiating power than the opposite side.

In the app and general consumer goods context, many companies have recently added clauses in their often un-read user agreements stating that consumers agree to waive their right to sue the company and/or waive their right to a jury trial. Instead, consumers must agree to arbitrate their claim outside of court. While this provision will never be relevant for most people, agreeing not to sue and waiving your right to a jury trial are substantial concessions. Since companies have no interest in negotiating their user agreements, and competing products come with similar terms, consumers have few options but to forgo their access to the judicial system.

Tenants are in similar situations. Most landlords won’t agree to negotiate any major portion of a lease. Perhaps they’ll negotiate the ability for a tenant to have a pet or satellite dish, but they generally aren’t willing to negotiate away major protections. And why should they? When a landlord has 30 prospective tenants, there’s little need to entertain an applicant asking for the full two years to sue, as provided by the Georgia Legislature, when they could choose another applicant who will sign the lease as-is.

New(ish) westside Atlanta apartments. Image Credit: SustainAtlanta

A tenant could agree to pay $200 more in rent for the full two year statute of limitations, but why should the tenant have to make a concession to obtain a right provided by Georgia law? Realistically, most tenants either wouldn’t notice the one year term in the lease, would notice it, but wouldn’t understand it, or simply wouldn’t care because they think it will never be relevant. Even though most tenants will never need to sue their landlord, access to the judicial system is fundamental to our society and courts often provide the only check on the actions of those in more powerful positions.

In order for a court to strike certain provisions of a contract, the provisions would need to either be prohibited by statute or contravene public policy. In this case, there is no statute preventing landlords, or any other party, from reducing the statute of limitations for any claims.

But what about striking it on public policy grounds? The Georgia Court of Appeals has previously ruled that provisions in leases completely barring simple negligence claims against landlords are valid. However, provisions contravene public policy and will not be upheld when they attempt to absolve landlords of liability for gross negligence – negligence that amounts to willful or reckless actions on the part of the landlord.

Georgia courts don’t feel as uneasy about provisions that reduce the statute of limitations to file lawsuits. Since the Georgia Legislature only set two years as the maximum time limit to sue, landlords and tenants are free to “negotiate” less time.

If Landlords Could Already Prohibit All Negligence Claims, Why Is This Ruling So Controversial?

Last week’s decision is controversial because it upheld a lease that reduced the statute of limitations for any claims; not just claims originating from the lease itself. The latter is less controversial since a claim originating from the lease, such as a lawsuit against the landlord for not returning a security deposit, is theoretically a claim both parties imagined as a possibility when they entered the agreement since most leases specifically reference security deposits. A claim unrelated to the terms of the lease, such as a negligence claim, is perhaps something not envisioned by an ordinary tenant unless the lease specifically references negligence claims. Barring this type of claim could therefore seem less fair to the average person.

As the tenant’s attorney stated, the court’s ruling seemingly allows a landlord to escape liability if one of their maintenance workers strikes a tenant’s car while driving miles away from the apartment complex and the tenant fails to file a claim within one year. Again, the provision in the lease said any claim against the landlord must be brought within one year. Even if a tenant has negotiating power, such a situation is likely not something an ordinary tenant envisions when entering a lease.

The Good News

The Georgia Legislature recently passed a law allowing victims of family violence to terminate their residential leases without penalty as a means of escaping dangerous situations. So there are elected officials who are interested in helping, but they need to be made aware of the issues. You should also contact your elected officials at the state and local level and ask them to address housing issues. The Legislature could amend relevant statutes to prohibit residential landlords from reducing the statute of limitations in their leases or prohibit landlords from barring claims against them all together.

Be sure to read your lease. Even if you have no negotiating power, you should be aware of its contents. If you have a friend or relative who is an attorney, reach out to them for basic guidance. If you are injured or your property is damaged then contact an attorney as soon as possible. You can also reach out to Georgia Legal Services or Atlanta Legal Aid Society if you have limited financial resources.