In past articles we have recounted court cases where landlords have had to hire lawyers to defend themselves against claims of liability for “dangerous” conditions on their properties. All too often landlords are found liable for crimes that occur and hazards that exist on their properties. Things are now to the point that we have to begin with the assumption that courts will usually rule in favor of the tenant if they are given any possible excuse to do so.
The additional exacerbation is that lawyers are trained to look for “deep pockets,” that is, the party most likely to be able to pay a judgment. That usually means the landlord, if rental property is involved. Combine that with the penchant of courts to rule against landlords, and it is a double whammy for rental owners and managers.
In this article we will look at when landlords can be held liable and when they should not be.
If you know about a dangerous or hazardous situation, you had best correct it. Failure to do so is probably the number one reason landlords get sued. There was either a hazard on the property or some other dangerous situation that the property owner should obviously have known about and did nothing to correct.
If a tenant calls about any situation that could remotely be considered dangerous, fix it immediately or, if it is possible, make it difficult for anyone to be injured there by blocking off the area. The situation that is most perilous to your bottom line is you’re your tenant calls to say “I don’t think this is very serious, but . . . .” Don’t finish your dinner, postpone your flight to Hawaii on your cell phone on the way to your property, break a few traffic laws, but get to your property as fast as you can. Any time a tenant thinks something is “not serious,” the building may be ready to fall down with the next strong wind.
Things you will want to see to right now are:
• Loose handrails
• Broken steps
• Locks to outside doors that don’t work
• Insecure outside doors
• Insecure windows that can be reached from the ground
• Loose things above the ground that could fall at any moment
• Loose electrical wires that spark, smoke and blow fuses or circuit breakers
• Fire hazards
These are situations where you knew about a problem but did not correct them. But this list is far from complete. We should be concerned about any potentially dangerous situations on and around our properties. Count on paying big bucks to lawyers and in judgments if one of these situations turns deadly or damaging. And when it gets fixed, be sure it is done right. Doing a poor job is just as bad as none at all, as we shall see next.
When something you do gives the expectation that another person can rely on your word or deed, you are responsible for the person relying on that expectation. When you repair loose steps, people expect that they should be able to use them without extraordinary care. If the job was done badly, you will pay. If you put what appear to be secure locks in an outside door, make sure that they are indeed secure, and not some cheap piece of garbage that even the most inexperienced crook can get through with a stolen credit card.
In fact, you undertake a greater responsibility once you repair a potential problem than you would had you done absolutely nothing. If you did nothing, your tenant would probably take more care. He would be careful going up damaged stairs and would block the doors of his unit to a damaged balcony. Fool him into thinking he is safe when he is not and you will pay.
About the worst thing you can do is hire someone to work on your property without checking them out. That includes not only being qualified to do the work, but having a criminal record.
One particularly expensive judgment against a landlord occurred when he hired a workman for his apartment complex who had been convicted of rape. Worse yet was the fact that the landlord gave him a master key so he could get into apartments to do work. The landlord never checked anything about this person, despite the fact that he could easily have learned about it with some basic reference checking.
Unqualified, druggy or drunk contractors are another danger. The property owner is ultimately responsible for any work done on his or her property, regardless of who did it. If you hire someone who does a sloppy or dangerous repair job and someone gets hurt because of it, it is your responsibility (likewise if you hire someone who drinks or takes drugs on the job). Even if the work was done satisfactorily and passed inspection by the building inspector, if an accident occurred later, a lawyer would try to make a case that the property owner was negligent because he hired a workman who was drunk or on drugs.
Lying about dangers is equally dangerous– lying can take the form of outright misstatements and misleading or obfuscating statements. Suppose an applicant asks about crime in the area of your apartments. You know full well that there’s a lot of it—break-ins, muggings, car prowls, the whole works. But you say that this is a pretty good area. Of course the first thing that happens when the tenant moves in is that she gets robbed. Then she finds out from other tenants that the crime is pretty bad around her new home.
Not about to take this lying down, she hires a lawyer; and the lawyer says you knew about all this crime, lied to her, perpetrated a fraud, and should have to pay her damages and medical bills, plus moving costs to a “safe” apartment. Chances are, you will have to pay.
Just as bad is evading the crime question. An answer such as, “I don’t suppose it’s any worse than anywhere else,” or, even worse, “Isn’t that a great view from this window here?” will get you into just about as much difficulty.
Another touchy situation is renting to someone you know to be dangerous. Let’s say an applicant responds to your ad for a vacancy. He tells you that he was in prison for assault. You rent to him anyway. The next week he gets mad at another tenant and puts him in the hospital. The injured tenant finds out that the tenant who assaulted him was a convicted felon and says you should never have rented to him. The tenant’s lawyer naturally agrees. You come to find out that this loony tune was in jail for injuring other people not just once, but several times. He has a long history of violent behavior.
Are you liable? Maybe, maybe not. It depends on how well your attorney presents your case, how well the plaintiff’s attorney presents his case, and what kind of a mood the judge and jury are in. Regardless, it will cost you a lot of money in lawyer’s fees and court costs, if nothing else.
You can avoid that problem by stating in your rental policies and standards that you won’t rent to anyone with a conviction for injuring another person, or have landlord references that they were violent or injured neighbors or other tenants.
You aren’t liable when you could not have foreseen a problem. Usually you’re in the clear if there was no way you could have known about a dangerous situation. You may be sued, however, and it will be up to you to prove that you did not and could not have known about it. Your best defense is regular inspections of your properties with an eye toward finding hazards.
Regardless of the form you use, or how you go about it, careful, written records are essential. Every time you visit a property for any reason, you need to make a note of the date and time of your visit and what you did and/or said. Without that record you will be hard-pressed to recall and prove what you did to maintain the property. Even if you visited the property for a reason other than repairs or maintenance, write it down on your record for that property.
