Seven Day Notice to Cure??--Item not in Lease

Seven Day Notice to Cure??--Item not in Lease

Real Estate Broker · Boca Raton, FL · Member since 2014 · 98 posts · 23 votes

Hey All,

Looking for opinions here. I purchased a duplex a few months back. In one unit I inherited two adults with three small children all under 3 yrs old. They are fine with payments, but the lease agreement that was in place upon purchasing the property is what I would call "flimsy" at best. I typically drive and/or walk my properties once a week or so. Today upon walking this property I discovered a nice big trampoline set up in the back yard- I'm assuming they must have gotten it for Christmas. As I said the lease that is in place is not even remotely close to something I'd use and the only language in there about any alterations are only in regards to the building itself or "construct any building or make other improvements on the demised premises without the prior written consent of Lessor." I would hardly consider a trampoline a "building" or improvement but it was constructed without my consent. Not only that, my insurance will drop me knowing I have one on the property. Would you send a Seven Day Notice to cure? I can't say they're technically violating the lease, so there's no violation to cure. However, I'm pretty sure I can make them take it down simply for the fact it would cause me an undue hardship in the loss of my insurance coverage.. am I correct? So again would you use a specific document? Just tell them to take it down and followup with the seven day? And how would you handle the lacking lease from this point on? Would you just try to get them to sign a different lease, add a bunch of addenda or just try to ride it out until the end of the term?

Thanks!!

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Cory IannaconePro Member
Investor · Harrisburg, PA · Member since 2016 · 126 posts · 377 votes
9y

I agree with @Jessica Zolotorofe 's response and was about the write literally the same thing after reading the initial post.  But, maybe I can add a practical answer--less of the legal answer and a shorter answer of some of the responses referenced above.  Are we dealing with a reasonable tenant here?  If so, can you talk to the tenant about the issue--it's dangerous, someone could get hurt, and your insurance won't cover it.  Reasonable people are more receptive in a more personal conversation as opposed to a letter.  Worst case scenario is that the tenant refuses to take it down or work with you.  In that case, I would send the letter, telling the tenant he/she needs to remove the trampoline for the safety issues you previously laid out.  (While it won't completely insulate you from liability, you need to take all steps possible to avoid property damage or personal injury.). If the tenant still refuses to take it down, then it sounds like you are in a state of limbo for approximately 4 months when the lease expires.  (Basically, cross your fingers that no one gets hurt or property damaged.)  At that point, address the trampoline issue in the new lease (i.e. Its prohibited).  If the tenant doesn't agree, find a new tenant who does agree.  Find a good attorney who can get you a tight lease.

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  • Kim Meredith HamptonBusiness Member
    Real Estate Broker · St Petersburg · Member since 2014 · 2k+ posts · 2k+ votes
    9y

    @Fausto Carosella yes the insurance company will have a fit if they see the trampoline, and trust me they are now looking at everything. Give them the 7 day notice with opportunity to cure. Then you'll know how to proceed from that point if they remove

    2nd, I would wait it out until the lease is expiring with regard to the lease agreement 

  • Attorney · NJ · Member since 2016 · 1k+ posts · 794 votes
    9y

    How do you know your insurance company will drop you? How would they even know? It's a pretty typical thing for a kid to have  in a backyard. I'm not sure it's as big of a deal as you think. Is it a built in structure or just free standing? Make them carry their own liability policy, list you as additional insured, and waive subrogation and then have them sign an agreement to indemnify you for any losses/waive any risk, etc. if they want to keep it up. Does the lease by any chance have a provision that doesn't allow them to do anything that would increase risk or insurance premiums? Otherwise, you can't make them cure something that the lease doesn't consider a default, so if the lease has no protections in place for you, then your hardship is unfortunately, your problem. Especially since it won't render the property uninsurable, even if your premium went up or you had to switch companies. It's not like they installed explosive launchers. It's a trampoline... And you're probably stuck with the lease until it expires. How long is left in the term?

  • Real Estate Agent · Virginia Beach, VA · Member since 2012 · 2k+ posts · 1k+ votes
    9y

    I think even under any specific lease, you are allowed to add rules for the safety of all concerned, especially if it is violating your insurance.  Most leases have something about not keeping hazardous materials or violating insurance.   I would definitely give them notice to remove it so you are at least in writing stating you do not condone it now that you've seen it.  If nothing else, state that you consider it "other improvements" and you did not give consent.  

  • Minneapolis, MN · Member since 2013 · 2k+ posts · 1k+ votes
    9y

    this is not a typical outdoor apparatus and Insurance will be a issue..  I would also not permit a swing set or any elevated type of playground equipment.

    Just let them know they can't have anything in the yard. NO POOL either.. wading or otherwise. 

    Gas Grill's not closer that 10 feet from building if you even permit that at all.

  • Fausto CarosellaPro Member
    OP
    Real Estate Broker · Boca Raton, FL · Member since 2014 · 98 posts · 23 votes
    9y

    @Jessica Zolotorofe It specifically says in my insurance policy bodily injury resulting from trampolines are not covered... Not only that but in Florida trampolines are like sails on a boat when there are hurricanes which is another reason if you keep a trampoline in your yard you can't get insurance... at least not easily. And if I were to find a company that would cover it and my premiums went up, wouldn't that be undue hardship? As stated the only line even close to what I could use for myself would be "Lessee shall make no alterations to the building on the demised premises or construct any building or make other improvements on the demised premises without the prior written consent of Lessor." When I enter an agreement with a tenant I require renters insurance as a provision of their lease. If they don't like it, they can rent somewhere else... but how can I, as you stated, force them to carry their own liability policy if it's not part of their lease? You mean as a condition for keeping the trampoline?-- but since that's not a violation of their lease either I couldn't make them do either.... Their lease expires end of May...and to @Kim Meredith Hampton's point I have heard from other local investors about insurance companies making "spot checks" too, for what reasons I do not know, or what their criteria is other than complete randomness.... I'm sure there is a reason, but I sure don't want to take a risk and find out if it's true or not.

  • Attorney · NJ · Member since 2016 · 1k+ posts · 794 votes
    9y

    "It specifically says in my insurance policy bodily injury resulting from trampolines are not covered..." that does NOT mean that they will drop your insurance policy. It's just an exclusion from coverage.  If you went elsewhere and your premium went up, that's your problem, unfortunately. Just like if a lease said dogs were ok and no breed restrictions and your insurance went up because the tenant got a pitbull... 

    There is no undue hardship because your rate goes up. Unless something the tenant does renders the property wholly uninsurable, which even under your current policy, is not the case, then no. 

    As to the lease language about structures and improvements, again, is it built in or just free-standing? 

    You can't force them to carry the policy, but you can try to make it a condition for keeping the trampoline. Although, there is always SOME provision in a lease that a lawyer with a trained eye can find to help you make your case other than the one you mentioned, or some law that requires them to act in a safe manner in connection with the premises. Even if it is pointing out a provision in the lease or a statute that could impose a major liability on them if they don't get the insurance and someone gets hurt. And last resort, send them a notice saying your insurance coverage for the property expressly disclaims any liability in connection with the trampoline and they will be solely liable for any costs or damages incurred in connection with its use or with keeping it on the property. Your insurance might not cover, but they are still liable under the law if they cause or contribute to an injury.

  • Attorney · NJ · Member since 2016 · 1k+ posts · 794 votes
    9y

    Unless the lease says you can, you can't just start making up rules after it is signed and they have been occupying the premises for a period of time. Unless there is some provision in the lease, or some statute to allow it, they have every right. That being said, there very well may be one or the other or both, but the suggestions above that you just tell them they can't, sure, give it a try, maybe they will just comply to keep the peace, but they tend to be pretty expensive and if it was the kids' Christmas gift, not sure you'll get too much cooperation without a legal right to impose restrictions.

  • Colleen F.Pro Member
    Investor · Narragansett, RI · Member since 2013 · 8k+ posts · 4k+ votes
    9y

    My insurance was canceled for a trampoline so it happens.  They came by for an inspection. It was going that weekend but they still canceled. 

  • Attorney · NJ · Member since 2016 · 1k+ posts · 794 votes
    9y
    Colleen F. Then yours must have been a contingency not an exclusion from coverage. They can't just cancel your policy mid-term because you have something that could potentially cause liability that they wouldn't be covering anyway. Doesn't make sense.
  • Rental Property Investor · Seattle, WA · Member since 2014 · 1k+ posts · 1k+ votes
    9y
    Originally posted by @Jessica Zolotorofe:

    How do you know your insurance company will drop you? How would they even know? It's a pretty typical thing for a kid to have  in a backyard. I'm not sure it's as big of a deal as you think. Is it a built in structure or just free standing? Make them carry their own liability policy, list you as additional insured, and waive subrogation and then have them sign an agreement to indemnify you for any losses/waive any risk, etc. if they want to keep it up. Does the lease by any chance have a provision that doesn't allow them to do anything that would increase risk or insurance premiums? Otherwise, you can't make them cure something that the lease doesn't consider a default, so if the lease has no protections in place for you, then your hardship is unfortunately, your problem. Especially since it won't render the property uninsurable, even if your premium went up or you had to switch companies. It's not like they installed explosive launchers. It's a trampoline... And you're probably stuck with the lease until it expires. How long is left in the term?

     It's common for insurance to.cancel precisely for these types of things. It's an attractive/nuissance feature. I had tenants who got a pool despite lease violation. Insurance randomly drive by and cancelled my policy....

  • Rental Property Investor · Seattle, WA · Member since 2014 · 1k+ posts · 1k+ votes
    9y
    Originally posted by @Jessica Zolotorofe:

    How do you know your insurance company will drop you? How would they even know? It's a pretty typical thing for a kid to have  in a backyard. I'm not sure it's as big of a deal as you think. Is it a built in structure or just free standing? Make them carry their own liability policy, list you as additional insured, and waive subrogation and then have them sign an agreement to indemnify you for any losses/waive any risk, etc. if they want to keep it up. Does the lease by any chance have a provision that doesn't allow them to do anything that would increase risk or insurance premiums? Otherwise, you can't make them cure something that the lease doesn't consider a default, so if the lease has no protections in place for you, then your hardship is unfortunately, your problem. Especially since it won't render the property uninsurable, even if your premium went up or you had to switch companies. It's not like they installed explosive launchers. It's a trampoline... And you're probably stuck with the lease until it expires. How long is left in the term?

     It's common for insurance to.cancel precisely for these types of things. It's an attractive/nuissance feature. I had tenants who got a pool despite 

  • Cory IannaconePro Member
    Investor · Harrisburg, PA · Member since 2016 · 126 posts · 377 votes
    9y

    I agree with @Jessica Zolotorofe 's response and was about the write literally the same thing after reading the initial post.  But, maybe I can add a practical answer--less of the legal answer and a shorter answer of some of the responses referenced above.  Are we dealing with a reasonable tenant here?  If so, can you talk to the tenant about the issue--it's dangerous, someone could get hurt, and your insurance won't cover it.  Reasonable people are more receptive in a more personal conversation as opposed to a letter.  Worst case scenario is that the tenant refuses to take it down or work with you.  In that case, I would send the letter, telling the tenant he/she needs to remove the trampoline for the safety issues you previously laid out.  (While it won't completely insulate you from liability, you need to take all steps possible to avoid property damage or personal injury.). If the tenant still refuses to take it down, then it sounds like you are in a state of limbo for approximately 4 months when the lease expires.  (Basically, cross your fingers that no one gets hurt or property damaged.)  At that point, address the trampoline issue in the new lease (i.e. Its prohibited).  If the tenant doesn't agree, find a new tenant who does agree.  Find a good attorney who can get you a tight lease.

  • Attorney · NJ · Member since 2016 · 1k+ posts · 794 votes
    9y
    Insurance companies seriously pay people to drive by, get out of their cars and walk around the back of all of their insureds houses to cancel policies when they wouldn't have to cover a loss anyway? That is insane. Such a waste of their time and money. Are these national insurance companies or smaller FL companies???
  • Attorney · NJ · Member since 2016 · 1k+ posts · 794 votes
    9y

    @Account Closed completely different. A landlord has liability. An insurer does NOT if a trampoline or a pool is an exclusion from the policy. Makes no sense. 

  • Ryan MurdockPro Member
    Rental Property Investor · Austin, TX · Member since 2016 · 1k+ posts · 1k+ votes
    9y

    I'm sure the lease doesn't specifically prohibit the installation of a Ferris Wheel either but that doesn't mean the tenant has a reasonable expectation to be allowed one.

    You mentioned the property is a duplex. Rights within the unit don't necessarily carry-over to what could be considered "common areas" of the property. Neither tenant should have exclusive use to a common lawn, driveway, hallway, patio etc if those amenities are shared with other tenants. This includes storage of personal items regardless of whether or not they are an insurance liability.

    I'd make them take it down. 

  • Rental Property Investor · Olympia, WA · Member since 2012 · 543 posts · 311 votes
    9y

    No trampoline, swing set, elevated playground, or pool?  That is all very insurance friendly but none of it is tenant friendly. Perhaps a better strategy would be to just put in the lease that the yard is off limits due to insurance requirements?

    I'm just about done with the inane control of insurance.  We had a $350,000 liability claim against our homeowner's policy a couple of years ago.  $350,000 was the then liability maximum on our policy.  The claim was over an airsoft shot to the eye on someone else's property. The incident involved our son.  There was a medical dispute over whether there was an actual injury.  However, whatever the damage, real or imagined, I could find no legal liability for our family or for our insurance company.  Still, our insurance company paid the claim rather than fight the issue.   The allegedly injured party intentionally limited their claim to the policy maximum because they knew I would fight the claim if it went over the coverage and made us personally liable.  In my view the whole thing was a scam involving collusion between the father of the injured party and our insurance company's investigator.

    Shortly after the matter was settled, the insurance company notified us that they intended to inspect each of our rental properties.  Then gave notice that they would cancel two of them unless changes where made. One had an unpainted shed. It was sided with natural cedar boards, and looked beautiful.  The other had 6 chickens on the property.  I switched insurance companies and now have more coverage at a cheaper price.  The shed still looks great in unpainted cedar, and the chickens are still providing breakfast.  Between our insurance paying for claims they shouldn't and then fighting not to pay for claims they are liable for, I need to look into self insuring.

    @Cory Iannacone said it well, "Reasonable people are more receptive in a more personal conversation as opposed to a letter."  Good luck to you @Fausto Carosella.  I'd have my tenant sign a release of liability and offer to let them pay any increased cost if new insurance is necessary.

  • Insurance Agent · Maitland, FL · Member since 2015 · 397 posts · 244 votes
    9y
    Just remember insurance is only a risk financing technique. To many people think it's a transfer of risk, it's obviously not, if you have too little of coverage, your paying out of pocket, it excludes trampolines and there is an injury your paying out of pocket, bought the wrong kind of insurance, yep get out the wallet. Had a fire last year, they increase your premium because it's just risk financing and your "loan" became subprime. Here is the issue, insurance is literally a conditional and forgivable loan. My house burned down, I need money to fix it. Check the policy, oh it covers fire and we can loan you $100,000 to fix it. The premium is the interest rate/option cost of the loan. This is literally how insurance worked until the pope outlawed interest (so insurance lenders changed the term loan to policy and interest to premium). Okay with that being said, this trampoline might as well be explosives being used by your tenant. At least explosive use is illegal, and you would have no liability for their intentional crime. In fact, I respectfully disagree with Jessica Zolotorofe that explosives would be worse from a potential liability standpoint, if it was explosives at least you could call the police and have them take new residence at the local jail. But this trampoline is a highly significant liability hazard and greatly and unfairly increases your risk, which is why your insurer refuses to accept that risk. Send them the cure letter yesterday. Or be okay personally writing a large check. Even if you have an LLC I would say there is a strong public policy argument to piercing the veil, as you personally knew of the trampoline, did not do anything to cure the situation and failed to procure proper coverage for the liability exposure. Remember this is not about you or the tenant once the accident happens. It's about the 6 year old neighbor with a broken leg. The jury sees you (property owner), sees your tenant, sees the 6 year olds picture in the hospital and the parents that could/should not afford the bill. Which way do you think that's going. They need 6 people that could not find a way out of jury duty to agree you owe $10,000. And then in 12 years if that 6 year old does not feel whole, you get to go through the process all over again. Here's the thing too. Say the neighbors had health insurance. Guess who is suing you? Not the neighbors. It will be United Health Care/Anthem/really big pockets that want your money. Here is info from the Cleveland Clinic on the hazards of trampolines. https://health.clevelandclinic.org/2015/04/surprising-dangers-of-trampolines-for-kids/ Good luck with the process.
  • Fausto CarosellaPro Member
    OP
    Real Estate Broker · Boca Raton, FL · Member since 2014 · 98 posts · 23 votes
    9y

    Thanks for the responses everyone, it's much appreciated. @Davido Davido thanks for the input. I'd much rather go to court over a dispute telling someone they have to take down a trampoline with a question as to whether or not I have the actual right to do so over risking losing everything I've busted my hump for!

  • Investor · Wasilla, AK · Member since 2016 · 277 posts · 139 votes
    9y

    What a sad state of affairs we live in.  Trampolines are fun.  I only broke one kid's ankle on a trampoline when I was a kid (and then the trampoline came down, go figure).  I love trampolines, and haven't said anything when my tenants put them up.

    My first question is when insurance companies cancel, is the cancelation effective immediately, or do they give you 60-90 days to fix the situation?

    Personally, I'd cross my fingers and let the kids have some fun for a couple months.  If insurance does a drive by, hopefully they'll give you enough time to get it down and take a picture.  In which case, the common areas argument is the best one I've heard.  Unless there is a specific yard area for that tenant, just say that can't do that in 'the yard'.  Not that they would think of it, but in my state if the tenant said the previous landlord said that was their yard or their half of the yard, you're stuck again since a verbal agreement is legal.

    If you want to keep the tenants, and plan to wait it out till end of lease, do mention that the trampoline will be addressed now so that there are no surprises.

  • Colleen F.Pro Member
    Investor · Narragansett, RI · Member since 2013 · 8k+ posts · 4k+ votes
    9y

    @Jessica Zolotorofe  it was not excluded, apparently if you have a trampoline  you have to tell them  and unregistered vehicles too which was another thing they canceled for. This was my personal home. The vehicle they canceled for was towed in from auction and registered days latter. The trampoline was gone 3 days later as it was picked up by the purchaser. The insurance was one month old and yes the insurance guy came uninvited, they don't have to give notice of entry like a landlord. The reason they cancel is this is a suit happy country  (contributed to by attorneys!) the tramp is too much liability. I have in my lease that rules may change from time to time and it isn't the broken legs with tramps that should worry you it is broken necks etc.

    @Sam LLoyd They did not give time to correct they said you are canceled in 30 days. I don't know if this is typical.

    In rental properties they have come and made lists of things to correct windows sidewalks. I have a granite block barn they excluded from coverage because it was old, not structurally unsound just old... I appreciate the feedback but some things were very petty and don't seem to make sense. I pay a lot in insurance cost but I expect when they need to pay out it will be trouble. Once a truck hit my house, it took a year to settle the claim.  I don't agree with how insurance works but I have to have it.

  • Attorney · NJ · Member since 2016 · 1k+ posts · 794 votes
    9y

    @Colleen F. That makes sense, but the language Fausto quoted above just says that any injuries that result from trampolines are not covered. That would just be an exclusion from coverage as opposed to your case, where it was expressly a grounds for termination. 

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