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In the Landlords, Real Estate Investors & Property Managers Hub Facebook group (Meta group?) that we manage, we’ve seen a lot of “heated debate” about tenant vaccine mandates, to put it mildly.

And in fact, we’re starting to see the first lawsuits hit civil courts in jurisdictions around the US.

All of which raises two questions:

1. Can landlords require tenants to get a Covid-19 vaccine or show proof of vaccination?

2. How should landlords approach vaccination and covid safety, in their rental units and buildings?

Deni and Brian talk through the tangled legal mess, to get to the root of the matter.

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live off rents podcast transcript

 

Brian: Hey, guys.

 

Deni: Hello, everyone.

 

Brian: Brian Davis and Denise Supplee here, founders of Spark Rental, I hope you guys are doing well on this Tuesday. So, we have a super contentious topic for you today. It’s our favorite type of topic, you know, gets everyone all riled up. Last week we had Abby Golyar on who from Think Realty. And he talked us through all kinds of good stuff about how to scale into commercial real estate and beyond, you know, expensive mistakes. Today we are getting into can landlords require their tenants to be vaccinated against COVID 19? And then, you know, we’ll also talk, should they? Because those are two different questions, can they, and should they? So, Deni is our resident legal expert here. Deni talk us through some of the legal tangles around this.

 

Deni: Just full disclosure, I’m not an attorney at all. Well, you know, eventually this was going to come home to the landlords, and it started with my Miami landlord who has like twelve hundred units. And he decided that at first, he was going to not renew anybody that unless they could prove that they were vaccinated. And I believe he even started not renting unless somebody would give them their proof of vaccination. So as a result, the Department of Health in Florida now will issue five thousand fines to businesses, government entities and educational institutions that require proof of vaccination. Now, landlords aren’t always considered a business, so if you’re just a mom and pop and you own a few properties, you don’t have an LLC. You’re not a business, you’re just an investor, not just you’re an investor, you’re never just an investor. So, the problem here is so can a landlord require a tenant to be vaccinated? Well, this is not going to be one of those. Oh yes or no. There’s definitely a big gray area here, but. When we rent an apartment out to somebody, we give them quiet enjoyment, and I’m sure you’ve heard that if you’ve been in this business long enough, and that means that they have the ability provided they’re paying the rent and everything to be able to live in their property the way they want to live in their property.

 

Deni: So, with that being said, that probably wouldn’t stand up, I believe. And we. Would be court cases, but I don’t think personally that it’s going to stand up in courts, I think that or the forcing of vaccinations to stand up in courts because there’s too many things against. Yet the other thing is, yeah. So, your tenant says, no, I don’t have a vaccination. And you decide you want to evict him. Well, if it’s not in your lease So what terms are you evicting on? So, there’s so many different nuances in this. The other thing is you could be called like it could be called enter under anti or discrimination. Fha could get into this eventually because there’s disability laws and everything else. So, you’ve got to be really, really careful in how your approach is. If you’re one of those landlords that chooses to force this issue, here’s my resident legal assistant. Sorry.

 

Brian: For those of you listening. Danny’s dog just wandered it right up to the camera and started licking her ear.

 

Deni: All right, guys, I’m going to just move on. Ok.

 

Brian: Now, what about nonrenewing tenants who are not vaccinated? You know, if you are a landlord who is trying to not rent to people who aren’t vaccinated for some reason, you know, could you non renew tenants who are not vaccinated?

 

Deni: Well, I mean, technically, you can non renew anyone, depending on your state, because there’s, I think, New Jersey, where they’re non-renewal. Statutes are a little crazy.

 

Brian: There are some cities to yeah, there are some cities that call it no cause evictions, which is a total misnomer designed for political reasons. But yeah, there are some cities that that don’t allow that either. But like you said, you can theoretically non renew a tenant just because you want to.

 

Deni: You know, if you were to go to somebody and say, I was wondering if you’re vaccinated, can I see your vaccination card? And they say, No, I’m not. And then all of a sudden, you’re evicting them. I would be very, very careful. Very yeah,

 

Brian: Asking to be challenged in court.

 

Deni: Oh yeah. You know, one of the things we were talking about in the beginning was how, you know, tenants are not there basically kind of a customer. They’re not employees. So, I know right now there are a lot of companies forcing employees to either get their COVID shots or be booted, but it’s not the same way with a tenant. So, we have to proceed a whole lot differently for several reasons because, you know, like this landlord in Florida, I mean, this woman filed a case against him and there, you know, you could get fined. Who knows, because there are no definitive statutes around any of this right now. There are few in New York, so be careful if you’re investing in New York.

 

Brian: Be careful investing in New York in general. Very anti-landlord state.

 

Deni:  and some of the other tenant friendly states. And I’m going to put a link in. We have a map and an article on what those are. Those are going to be hard.

 

Brian:  Now what about the legality of a landlord asking a tenant for proof of vaccination? Is that legal?

 

Deni: Again, we’re in a gray area here. You can ask and they can give or not. But if they decide not to at that point, I don’t know. And you know, this is going to come down to precedents being set by court cases. But I would believe overall that there’s so many different things. I know people have cited HIPA, but it doesn’t necessarily fall under that. But there are disability laws where people, you know, maybe can’t get it for whatever reason. So, does this fall under ADA laws? I mean, there’s so many different gray areas, so you know. So, be careful so that you don’t get sued, right?

 

Brian: And it does seem like a privacy violation if a landlord were to ask a tenant for proof of vaccination. Although, you know, so you said that businesses can’t ask customers for proof of vaccination but aren’t can’t. Some don’t. Some businesses do that like cruise ships, for example. Don’t they ask customers for proof of vaccination before allowing them.

 

Deni:  Yeah, depending on where you’re going, I guess it depends. There’s so many variables. But again, that’s not your living area. You know you’re going on vacation where you’re signing on again for this quiet enjoyment. So, you rent and as long as you’re not breaching your lease and. You know, and again, I’m sure we’re going to see eventually some of these landlords come up with putting in their lease that in order to rent, you must be. Covid vaccinated,

 

Brian: And then I’m sure there’ll be court cases that follow that up, you know, as it’s challenged in court.

 

Deni: Yeah, I mean, you know what there are lawyers chomping at the bit for these cases.

 

Brian: Oh, sure, you get famous. I’m sure they want the press of these, these sorts of cases. All right. So, what should landlords do? How should landlords approach trying to keep their buildings COVID-free?

 

Deni: Well, I mean, the normal you want to make sure that if you have common areas, if you are even in a small duplex like you’re in a small duplex and you have those common areas where the mailboxes or wherever, but you’re making sure that it’s clean and not only making sure that it’s clean, but that you have not proof like you don’t take a picture of yourself cleaning your common areas, but you want to show that you are doing this. And places like laundry rooms and stuff like that just so that you’re making sure that you’re doing your part so that you can stay out of this hot water mess, that’s going to probably evolve. The other thing is, you want to check with your insurance company because that’s another area that they probably might be offering protection against COVID related lawsuits and whatnot.

 

Brian: For an extra premium, I’m sure.

 

Deni: Oh, of course. Of course, everybody is going to capitalize on this, that’s for sure. You want to keep in mind that when if you are somebody who decides to require a vaccination of your tenants, you need to know that if there’s any issues with disability or religion or any other valid category of exception, you have to accept that. And going against that, you’re putting yourself in big hot water.

 

Brian: That sounds difficult to prove, though, right on the part of the tenant. So, I mean, a tenant could come to you and say that they have a religious objection to getting vaccinated, for example. And how can you as a landlord disprove that? I mean, you can’t really disprove that. So, I mean, it’s almost like an infallible argument that they can make, which, you know, which is again, you know why Deni and I are saying you probably can’t get away with these sorts of policies in the first place. As a landlord,

 

Deni: You have your anti-vax groups that you know, and this is, you know, everybody’s got their thing, you know, but they don’t vaccinate their children for whatever reason. And it’s their belief. So, I mean, there’s so many different gray areas in here and, you know, not just religious or any of these other areas, but you know, how do they make sure that you have these things in place? I don’t know, but a landlord has to more or less accept what you give them. And if you don’t, anything can end up in court and then you’ll fight it out there.

 

Brian: Right, so that’s really the problem with even trying to require vaccinations from your tenants first, you know, it’s unclear whether you can even legally insist on asking for proof of vaccination. Second, you can be sued by tenants. Third, they can claim a religious exemption and claim discrimination on that on that stance, and you can’t really disprove that. So, I mean, it’s almost like a carte blanche that they can, you know, they can play that card any time. How are you going to defend against that? You can’t.

 

Deni: Well, it’s kind of like fair housing. You know, you get caught. Maybe it’s something very subtle that you did, but somebody is calling you on it as being discriminatory.

 

Brian: I mean, we know of landlords and property managers who in a multifamily space, you know, are complex and there are different buildings. You know, they made an effort to try to put the families with young children, you know, in the same building because kids are loud and messy and disruptive, and they get all kinds of noise complaints from tenants who don’t have children. But the problem when you do that, that is discrimination based on familial status. So, you can’t put tenants with young children all on the same building. It’s discrimination by fair housing laws. Despite all the complaints you get from other tenants, you can’t. You can’t make them happy. So, yeah, you have to be really careful with this stuff.

 

Deni: You just have to kind of tread very, very lightly. I mean, because truth be told, I mean, if you have a like a larger, you know, apartment community or something like that, you’re going to have a few people, you know, if you only have if I don’t say only, but if you have a smaller triplex or duplex, the chances are that you’re not going to have to, you know, are you really going to push this issue? But you know, there are big property management companies where this issue is in their face, and it’s not only just because of their beliefs. It also is because there are some tenants that are saying, how do we know we’re safe here? And then you open for a lawsuit because God forbid that tenant get COVID and Then there you go. You have it’s like you have a lawsuit over here and a lawsuit over here. Damned if you do. Damned if you don’t.

 

Brian: Yeah, because ultimately, you’ve got people out there who are super gung-ho vaccine evangelists who think that everyone should get vaccinated no matter what. And then on the other end of the spectrum, you have total anti-vaxxers who would rather die of COVID than get vaccinated, right? So, you know, on these two extremes, you’re not going to make everyone happy. Don’t try to make everybody happy. It’s a losing game. What you can do is if you do manage a larger community and you are going to if you do want to host community functions, do it outside. Right? Because you know, your chance of spread outdoors is way, way lower than indoors. And if you don’t feel comfortable hosting community functions, then wait till the spring.

 

Deni: Right? Right, I mean, there are some smart things that you can do like if you have a community room like that, you just reminded me that if you have a community room, you probably don’t want to use that for parties right now, But if you do, then you take the extra precautions again by cleaning and sanitizing. So, I mean. It’s a very gray area, we have a question, how about landlords that don’t want to ask for that? Could the government make us? Oh yeah, the government can do pretty much what they want at this. We’re seeing that. I mean, just putting in, just making it, forcing companies to force their employees right now I don’t agree with it. And but the government can do what the government spending until we all make a stand, I guess.

 

Brian: Yeah. So, you know, bottom line, you probably can’t insist on your tenants getting vaccinated, so you probably don’t want to be the case study in going to court over this. So, don’t. Yeah, I wouldn’t. I wouldn’t be that that person who tries to insist on it.

 

Deni: And of all the places Florida where it’s been one of those places of discussion

 

Brian: Very gently put their Deni.

 

Deni: Yeah, it wasn’t it politically correct. That is where this landlord of twelve hundred units decides I’m going to put this through. I’m going to make everybody get vaccinated.

 

Brian:  right Because Lynn or Florida actually did pass a law specifically banning businesses from requiring customers to show proof of vaccination. So, Florida actually has laws on the books about this, unlike most of the U.S. So, Deni any final thoughts about landlords and trying to require their tenants to be vaccinated?

 

Deni: Well, I know it’s a hot topic. I’ve seen the Facebook posts about it and

 

Brian: This is out there.

 

Deni: Oh, well, everybody has an opinion, you know, and it’s OK to have an opinion, but you operate a business. So, the idea is to make money and you don’t want to be putting yourself in areas and positions where you’re going to lose money. So be careful.

 

Brian: Yeah. And you don’t want to be sued, right?

 

Deni: Well, that’s yeah, big time.

 

Brian: All right, guys. On that note, we will see you next Tuesday. Same time. Same place, our Facebook group. 2:00 p.m. Eastern. And in the meantime, let us know what you want to hear about. We’ll see you next Tuesday. Have a great week.

 

Deni: Bye bye.

 

 

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