Unluckiest Landlord: When Police Destroy Rental Property

It’s not every day that a federal appellate court addresses a state landlord-tenant matter, let alone writes an opinion that begins like this: “A landlord is lucky when he rents a dwelling he owns to a tenant who turns out to be pretty good. When he rents to a tenant who turns out to be fairly bad, he’s unlucky. And then there’s a landlord like Roland Johnson, who goes far beyond being merely unlucky. Johnson picked a doozy of a tenant—he rented to a fellow named Steven Avery.”

Who was Steven Avery? A convicted rapist who spent 18 years in a Wisconsin prison, but released after proving his innocence using DNA testing. His release prompted legal reforms, and he even sued the county for wrongful conviction. And for a while, he was Johnson’s tenant, living in a trailer at a salvage yard. It was there that he raped and murdered a young woman. Ironically, the case against him was proved using DNA evidence.

The police investigation that literally unearthed the evidence that would nail Avery was not conducted with kidd gloves. Searchers ripped up carpet, tore up walls, and jackhammered a concrete floor. Mr. Johnson, the hapless landlord, was left with more than the usual amount of damage after a typical tenancy. Mr. Johnson needed a responsible, deep pocket, and he set his sights on one, with lofty arguments—he sued the county for violations of his Fourth, Fifth, and Fourteenth Amendments rights.

But the federal court didn’t buy it. He lost on the Fourth Amendment claim when the court decided that the officers acted reasonably, even though they might have used less destructive means (such as a diamond- or carbon-bladed saw in place of the jackhammer). And his Fifth Amendment claim—that the government had deprived him of his property without just compensation—was a “non starter,” because the government had acted legally when serving its warrant. Sadly for Mr. Johnson, the state’s police power trumps the usual duty to compensate when taking or damaging private property.

Mr. Johnson was consoled with the suggestion that he look to state law for compensation. That might prove to be a cruel hint. Wisconsin does provide for suing government officials for property damage they cause, but such suits need to be filed within 120 days of the event. (Wisc. Stat. Ann. § 893.82.) It’s a bit late.

But maybe the federal judge was alluding to another state law remedy. Landlords can sue for damage when the security deposit is inadequate; all they need prove is that the tenants, or others on the property with their consent, caused damage beyond normal wear and tear. Although the cops were hardly there with Avery’s consent, an argument might be made that Avery, by committing a crime on the property, was setting in motion a foreseeable series of events that he should be held accountable for. In legalese, this is known as “proximate cause.” If the search and the damage it caused can be said to be a foreseeable consequence of the on-site crime, Johnson might have a case.

Of course, even a good legal theory is no guarantee of actually collecting what you win. Avery is off to prison and will surely remain there. But remember that unlawful conviction lawsuit filed over the first conviction, the one he was exonerated for? Apparently, it hasn’t settled, and it’s unlikely any judge or jury would give him a cent. But if Avery had collected, his landlord might have had a source for payment.

Last but not least—what about the landlord’s insurance policy? His property policy is subject to named exclusions, and a big one is damage caused by the seizure or destruction of property by government authorities. No help here, either.