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Party at your own risk

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Posted: Wednesday, February 11, 2009 10:00 pm

Q: I'm a tenant in a large apartment complex. Management regularly allows residents to rent out the clubhouse for private parties, and I'd like to do so for a graduation celebration for our son. The contract they handed me includes a provision giving them the right to administer breath tests to guests, and to even pat them down if security thinks it's warranted. I think these acts are grossly invasive of our privacy, and I'm wondering if they're legal. -Beth S.

A: In the eyes of the law, a pat-down is a search, and subject to the legal requirements of the Fourth Amendment of the United States Constitution. That Amendment, and Supreme Court cases that have interpreted it, require the government to have "probable cause" and a warrant before they conduct a search. There are a few exceptions to this requirement - when the police are in "hot pursuit" of a fleeing criminal, and when they must act to preserve evidence of an important crime - and one clearly recognized exception is when the person being searched simply consents to the search.

Now, before we go further, let's focus on those italicized words: the Fourth Amendment concerns actions by the government. Because you'll be dealing with a private landlord and private security personnel, the government (the police) are not involved. In other words, because the federal Fourth Amendment won't help you, you'll never reach the question of consent.

You may, however, find some support in your state's constitution or laws. In California, for example, voters passed an initiative that protects individuals from nongovernmental intrusions into their privacy. This means that your landlord's policy would be subject to this guarantee. But could you (or your guests) successfully sue using this protection? In California, the protection kicks in only when the intrusion is legally significant. Most judges would agree with you that a physical pat-down would pass this test. Next, however, you'd have to show that your guests reasonably expected that they'd not be searched - and here is where you might run into problems. If the landlord is careful, it will tell you to advise all partygoers that they'll be subject to Breathalyzers or pat-downs - and assuming you pass on this advice, their expectation of privacy will go away. In other words, if they come to your party after being told of the possible procedures, a judge might conclude that they gave implicit, advance consent to the search.

At the risk of going deeper down this rabbit hole, let's suppose that neither you nor your landlord tell your guests of the possibility of a pat-down. If your state extends privacy protection from nongovernmental intrusions, will your consent to the pat-down (evidenced by your signature on the contract) bar a guest's claim of privacy infringement? Probably not, because it's hard to imagine how you could effectively give consent for someone else. But that wouldn't necessarily mean that your guest would prevail on a claim against the landlord. If the landlord could convince a judge that the search was necessary, in pursuit of a worthy goal (prevention of drunken fights, for example), and that less intrusive measures were not available, it might win. And of course, any guest can turn and walk away, without any monetary consequences (surely you'll not be selling tickets). Voluntarily deciding to stay when a painless and cost-free exit is available can reasonably be construed as consent.

Bottom line: If you want to hold your party on your landlord's premises, and can't get it to drop the search provision of the contract, be sure to tell your invited guests. If they're inebriated or armed and try to get in anyway, they'll likely be stopped, which is a good thing. You might even find that your sober, unarmed guests appreciate the protection you're providing, and by showing up have indicated that they're willing to undergo a pat-down for the peace of mind it gives them.

Q: I'm the president of our local tenants' union. We recently succeeded in convincing our landlord to change his lease form, which had several illegal clauses in it, including one in which the tenant agreed to absolve the landlord of all liability in the event of injury due to the landlord's carelessness. I think we should pursue the matter and sue the landlord, for leading tenants to believe, all these years, that they had no recourse in such situations. Do we have a case? -Don L.

A: As you have learned, a lease clause that relieves the landlord from responsibility for the consequences of his negligence would not be enforced by a judge. A tenant whose lease included this clause, but who had a bona fide case against the landlord for injuries (suffered as the result of the landlord's failure to maintain a safe building, for example), would have seen his case go ahead despite this clause - most judges would not have enforced the clause. Now, it's possible that there may indeed have been individual tenants who had plausible personal injury claims but decided not to pursue them, thinking incorrectly that the lease clause would bar them. These tenants or ex-tenants may have a case against the landlord, but it would primarily be for the underlying injury, not the fact that the landlord attempted to prevent the lawsuit.

But you're asking about a different type of lawsuit - a complaint on the part of all of you that you've been misled. It's doubtful that you'll be able to collect, because unless you can show that you've been harmed, you have no damages. "No harm, no foul" does have its place in the law.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord's Legal Guide" and "Every Tenant's Legal Guide." She can be reached at


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