Category Archives: landlord-liability

“Cellphone rapist” and the Landlord’s Liability

The June 7, 2011 burglary and rape of a tenant in Oakland, California, filmed on the victim’s cellphone, bears many unfortunate resemblances to a common scenario: The criminal enters the home through a vulnerable door or window and assaults the resident. When it’s a homeowner who is assaulted, the question of responsibility for that easily breached door or window stops with the owner. Unless windows or doors were structurally unsound or installed improperly, a homeowner has only himself to blame for living with flimsy or broken items that facilitated the intruder’s access.

Not so when the home is rented. Landlords began learning in the mid-1990s that sloppiness with tenant security could lead to hefty judgments and insurance settlements. Texas was the first to pass a statewide law mandating locks and key control. Called the Texas Security Devices Act, it forced landlords to secure their premises.

California has similar codes and requirements. California Civil Code Section 1941.3 requires locks on specified doors and windows, and mandates deadbolts for exterior doors. Section 1941.1 requires doors and windows to be unbroken. Importantly, landlords’ obligations go beyond “the letter of the law”—in crime-plagued neighborhoods, especially for properties that have been the subject of criminal activities already, landlords must take reasonable steps to protect their tenants, a duty that goes beyond strict compliance with the codes. When landlords fail to follow the law, tenants may move out, withhold rent, and use repair-and-deduct to fix the problem themselves.

But when landlords fail to follow the law and a tenant is assaulted, the consequence to the landlord can be more serious than a case of rent withholding. If tenants can show that the landlord knew of the code violation or unreasonably insecure situation, that he failed to address it despite having a reasonable amount of time to do so, and that the assailant gained entry by means of the substandard door or window, the landlord may end up being partially responsible for the tenant’s injuries and losses.

The tenant who was assaulted in the Oakland case will have this standard to meet should she sue her landlord. Although she complained repeatedly to the landlord about conditions at the rental, according to the Bay Citizen, it’s not clear that she included the back door. So far, her description to SF Gate (“The door that [the assailant broke] was so flimsy I didn’t even hear the sound of it being kicked in….”) doesn’t establish that it lacked the legal requirements of an exterior door.

This tenant’s use of her phone camera to record the break-in was the result of thinking that the intruder was in fact a repairman, yet another in a long line of repairpersons who had been entering her home without notice, in violation of California law. Her landlord’s flagrant violation of California’s privacy statute is inexcusable, and no doubt it fans the public’s outrage. But the landlord’s callous disregard of tenant privacy, though exposing him to penalties for those violations, will not result in making him partially responsible for the break-in.

Bedbugs: Maybe More Than Just Annoying

They come out at night to gorge on human blood, but can last a year between meals. A single female will lay 500 eggs in her lifetime. You’ll find them in sleazy digs with slobby tenants, as well as upscale apartments with conscientious landlords and fastidious residents. They’re expert hitchhikers who can catch a ride on your suitcase or clothing. No one really knows how to kill them. What are they? They’re 21st century bedbugs, and if they show up at your rental property or in your apartment, you’ll probably conclude that mold, asbestos, or even lead-based paint are benign by comparison.

Until a few days ago, it’s been reassuring to know that, unlike lead-based paint, asbestos, and some molds, bedbugs do not seriously harm your health. For sure, their bites are maddening and unsightly, and dealing with them will disrupt your life (or your landlording business) in a major way. And the psychological effects of living with bedbugs can be difficult. But you aren’t likely to get seriously sick. The Centers for Disease Control still tell us, “Bed bugs, a problem worldwide, are resurging, causing property loss, expense, and inconvenience. The good news is that bed bugs do not transmit disease. The best way to prevent bed bugs is regular inspection for signs of an infestation.”

Maybe not. In an advance electronic publication of an article slated to be published in Emerging Infections Diseases, researchers in Vancouver reported the discovery of particularly nasty bacterium on bedbugs who were taken from patients admitted to an inner-city hospital. The bugs were carrying methicillin-resistant Staphylococcus aureus (MRSA) and vancomycin-resistant Enterococcus faecium (VRE). These bacterium cause serious staph infections that are very resistant to antibiotics.

The study’s authors concluded that they may have discovered a new pathway, or vector, for the transmission of these bacterium. Much like the mosquito carries malaria, perhaps the bedbug carries the bacteria, dropping it off as it bites its human host. However, further study is needed to determine whether the bugs are simple transmitters, or have the staph infection themselves; and even whether the bugs infected the humans, or the other way around. The researchers also noted that their findings occurred in an area of dense, poor housing, whose residents already had a high incidence of MRSA infections.

The implications of this study for landlords and tenants are significant. A widespread bedbug infestation qualifies as a habitability problem, which, if not addressed, will enable tenants in many states to break their leases and leave without liability for future rent, or withhold rent until the problem is fixed, or take steps to deal with it themselves and deduct the cost from the rent.

But if bedbugs are proven to be vectors for staph infections on the order of MRSA, the implications for landlords and tenants are dramatic. Tenants may be facing more than annoyance and disruption when dealing with the bugs. Landlords who fail to respond to an infestation or utilize ineffective treatments risk exposing their tenants to a devastating infection. Sickened tenants would have a lot more to sue over than just the value of their ruined belongings or the cost of having to move.

Ohio Landlord’s Good Deed Turns Deadly

Ohio landlord Steven Snow had known the family for 20 years. Tammy McDaniel and her three kids needed a place to stay after Tammy’s break-up with her boyfriend; Steven had a vacant rental home that he was fixing up. Steven says that Tammy was at the house waiting for the electricity to be turned on; he lent her a generator to warm the place temporarily. But she stayed the night with her kids, and in the morning, Steven found all of them dead of carbon monoxide poisoning. The house did not have a carbon monoxide detector; Steven has been charged with four counts of reckless homicide.

Reckless homicide is the killing of another person by acting, according to Black’s Law Dictionary, “with conscious indifference toward that person’s life.” On either side of reckless homicide sit murder (which requires an intent to kill), and negligent homicide (death caused by careless acts, otherwise known as an accident and not a criminal offense).

Contacted to comment on the situation, a spokesman for the National Apartment Association, a lobbying group that represents about 50,000 apartment companies, referred to the increasing number of states and cities that require carbon monoxide detectors in multifamily rentals (Ohio is not among them). Landlords are concerned, the spokesman claimed, that they might be held liable for injuries or deaths that result from CO poisoning if a tenant had removed batteries or failed to notify a landlord of a malfunctioning device.

It’s unfortunate that the National Apartment Association used this tragedy to air their constituents’ worries about installing detectors in general, rather than focusing on what appears to have happened here. CO poisoning results from the unvented burning of fossil fuels, including gasoline. Running a generator inside a house is really no different than running a car in a closed garage. It’s hard to imagine how this escaped the landlord’s attention; even his intention to use the generator temporarily exposed the family to deadly fumes.

The spokesman’s stated fears–that tenants who remove batteries or fail to report broken monitors will still be able to hold landlords liable–are not relevant here. Death involving a disabled or malfunctioning device is not what happened at Steven Snow’s house. Mr. Snow is charged with recklessly placing a CO source in an unvented place, where he knew people would be.

Landlords can’t prevent tenants from foolishly removing batteries, or from failing to ask for repairs or replacements; nor can they inspect rental premises constantly. For these reasons, when landlords follow the law and install monitors as required, they will usually escape liability if the tenant disables the unit or carelessly fails to report a problem.

Requiring CO monitors in Ohio and other states that do not yet do so is a common sense move, akin to the widespread mandate for smoke detectors. We know these devices save lives; we also know that tenants who install them on their own risk deductions from their security deposits for “damage” to the walls or ceilings. Having to pay for installing a widely acknowledged safety device is not something we should expect of tenants. Landlords who fear that tenant sloppiness or meddling will make them liable for subsequent injuries or deaths need to be reassured by their lobbying group that this is not likely to happen.