As a general rule, a landlord is liable to a tenant for an injury caused by a defect in the premises if the landlord failed to exercise reasonable care in the maintenance of the property. An injured tenant may sue a landlord under several different legal theories, the most common being negligence.
Negligence: The Landlord’s Careless Acts
Negligence is the most common legal theory under which injured tenants or guests sue landlords. Negligence is behavior that is unreasonable, considering all the circumstances. If someone sues you, alleging an injury caused by your negligence, a judge will first decide whether you owed the injured person a duty to refrain from acting negligently. If the judge decides that you owed that person a “duty of due care,” as it’s called in legalese, the injured person (the plaintiff) will then be allowed to take his or her case to the jury. At this point, the plaintiff will have to convince the jury that you failed to live up to your duty of due care, that your failure caused the injury, and that he or she is truly injured and deserves a certain amount of money in compensation.
In California, a landlord’s duty of due care extends not only to tenants (who will be the most likely to be injured), but to the tenants’ guests, delivery persons, repairpersons, and even trespassers. (The California Supreme Court ruled that a landlord has the same duty of care to maintain the property regardless of whether the person injured is a tenant, guest, or visitor.
Negligence Per Se: Landlord Liability for Violating a Law
When a tenant is injured because the landlord violated a law designed to protect tenants, the landlord is presumed to be negligent. Lawyers call this “negligence per se.” Probably the most common example of landlords’ negligence per se is failure to install smoke alarms as required by state and local law. (All multiple-unit dwellings, from duplexes on up, must have smoke detectors installed. (H& S § 13113.7.) Violation is also a criminal offense.) For example, a tenant who suffers injury or damage as the result of a fire that would have been extinguished sooner but wasn’t because the landlord violated a law requiring smoke detectors in the building does not have to convince a court that the landlord was negligent. The law assumes the landlord was negligent because he violated the law.
Other examples of negligence per se include:
- failure to equip rental units with dead bolt locks as required by state law and any local ordinances and
- failure to abide by other safety laws, including providing fire extinguishers and installing and maintaining interior sprinklers.
Tenants Can’t Sign Away Their Right to Sue Landlords for Negligence
You cannot protect yourself from lawsuits brought by tenants by putting a clause in leases and rental agreements absolving yourself in advance for injuries suffered by a tenant as a result of your negligence. Known as “exculpatory clauses,” these provisions are not legal or enforceable. (CC § 1953.)
Security Duties Imposed by State Law
You must provide dead bolt locks on main exterior doors (except for sliding doors), existing common area doors and gates, and certain windows. (CC § 1941.3.)
Be especially careful what you promise in writing
If you advertise or put in your rental agreement that your property offers security by way of security cameras, you could be liable if a crime happens and your security cameras weren’t working.
Ads That Invite Lawsuits
Advertisements like the following will come back to haunt you if a crime occurs on your rental property:
- “ No one gets past our mega security systems. A highly trained guard is on duty at all times.”
- “ We provide highly safe, highly secure buildings.”
- “ You can count on us. We maintain the highest standards in the apartment security business.”
How to Protect Your Tenants From Criminal Acts While Also Reducing Your Potential Liability
- Step 1: Meet or exceed basic legal requirements for safety devices, such as dead bolt locks, good lighting, and window locks.
- Step 2: Educate your tenants about crime problems and prevention strategies. Make it absolutely clear that they— not you— are primarily responsible for their own protection.
- Step 3: Provide and maintain adequate enhanced security measures based on an analysis of the vulnerability of your property and neighborhood. If your tenants will pay more rent if you make the building safer, you are foolish not to do it.
- Step 4: Don’t hype your security measures.
- Step 5: Conduct regular inspections of your properties to spot any problems (and ask tenants for their suggestions).
- Step 6: Quickly respond to your tenants’ suggestions and complaints.
- Step 7: If an important component of your security systems breaks, be prepared to fix it on an emergency basis and provide appropriate alternative security.
Provide Adequate Security Measures
At the very least, take the following sensible security measures for every multiunit rental property:
- Exterior lighting directed at entryways and walkways should be activated by motion or on a timer. (Do not rely on managers or tenants to manually operate the lights.) The absence or failure of exterior lights is the single most common allegation in premises liability cases brought against landlords.
- Make sure you have good, strong interior lights that come on automatically, in hallways, stairwells, doorways, and parking garages.
- Sturdy deadbolt door locks and solid window and patio door locks (including bars) are essential, as are peepholes at the front door. (Best to install two— one at eye level for an adult and another at a level appropriate for a child.)
- Shrubbery/ landscaping needs to be designed and maintained so that it is neat and compact. It should not obscure entryways nor afford easy hiding places adjacent to doorways or windows.
- Driveways, garages, and underground parking areas need to be well lit and as secure as possible (inaccessible to unauthorized entrants). Fences and automatic gates may be a virtual necessity in some areas of some cities. Several trade magazines in the rental housing industry often give good, practical information on available equipment.
- A 24-hour internal security system with cameras and someone monitoring them is often effective in deterring all but the most sophisticated criminals. Good quality digital security cameras have become readily available. Any security system should have sufficient daytime and nighttime resolution to provide good facial detail for recognition and identification. The system should have the capacity to store and index digital recordings for later production and use in evidence. Although these systems can be expensive, they are a valuable tool. If you install cameras in common areas and outside areas, do so without recording sound, so that you remain on the right side of privacy and anti-eavesdropping laws.
Be Candid About Security Problems
Your candid disclosures regarding the safety problems of your neighborhood and the limited effectiveness of the existing security measures may help shield you from liability if a criminal incident does occur on your property. From the tenants’ point of view, such disclosures serve to alert them to the need to be vigilant and to assume some responsibility for their own safety. If you do not disclose the limitations of the security you provide (or if you exaggerate) and crime does occur, one of the first things your tenants will say (to the police, their lawyer, and the jury) is that they were simply relying upon the protection you had assured them would be in place.
An important component of your disclosures to tenants involves disabusing them of any notion that you are their guardian angel. Let them know where your security efforts end, and where their own good sense (and the local police force) must take over.
Giving your tenants information on how they, too, can take steps to protect themselves will also help if you are sued. If a tenant argues that you failed to disclose a dangerous condition, you will be able to show that you have done all that could be expected of a reasonably conscientious landlord.
Maintain Your Property and Conduct Regular Inspections
Start by understanding that landlords are most often found liable for crime on their property when the criminal has gained access through broken doors or locks. Not only is the best security equipment in the world useless if it has deteriorated or is broken, but the very fact that it’s not in operation can be enough to result in a finding of landlord liability. By contrast, a jury is far less likely to fault a landlord who can show that reasonable security measures were in place and operational, but were unable to stop a determined criminal.
At the top of your list should be
- fixing burned-out exterior floodlights and
- fixing broken locks
LANDLORD LIABILITY FOR ASBESTOS EXPOSURE
Homes built before the mid-1970s often contain asbestos insulation around heating systems, in ceilings, and in other areas. Until 1981, asbestos was also widely used in many other building materials, such as vinyl flooring and tiles. Asbestos that has begun to break down and enter the air— for example, when it is disturbed during regular maintenance or renovation work— has the potential to become a significant health problem to tenants.
Common examples of friable construction materials include acoustic “popcorn” ceilings, heating and air conditioning duct wrap, paper backing of linoleum, and wall texturing compounds.
Unless you perform detailed testing to rule out the presence of asbestos, every pre-1981 structure must be treated as if it does contain asbestos.
LANDLORD LIABILITY FOR LEAD EXPOSURE
Disclose Lead Paint Hazards
You must inform tenants, before they sign or renew a lease or rental agreement, of any information you possess on lead paint hazards on the property, including individual rental units, common areas and garages, tool sheds, other outbuildings, signs, fences, and play areas. If your property has been tested (which must be done only by a state-certified lead inspector), you must show a copy of the report, or a summary written by the inspector, to tenants.
Information on Lead Hazards
You must give all tenants the lead hazard information booklet Protect Your Family From Lead in Your Home, written by the EPA.
What’s a Lead Paint Hazard?
A “lead hazard” includes deteriorated lead-based paint, lead-contaminated dust or soil, or the results of disturbing lead paint without containing the dust. The suspect paint, dust, or soil will become a legal hazard depending on two measurements: the concentration of lead and the area that’s affected.
Limiting Your Liability: Corporation
There are ways, however, to protect personal assets from being used to pay business debts. The most common method is to incorporate your landholding business and conduct all of your business as a corporation, not as an individual. That way, if a debt arises out of the corporation’s activities, only the corporation’s assets are liable for the debts. For example, say you create the ABC Corporation to own an apartment building in a troubled neighborhood. If the corporation is sued successfully for a crime that occurred on the property, only the corporation’s assets can be used to pay the settlement or judgment. Your personal assets, or other business assets not owned by the ABC Corporation, won’t be vulnerable. The effectiveness of this corporate shield depends on whether you consistently treat the corporation separately from your personal and other business affairs, and if you follow state laws prohibiting commingling of corporate and personal assets.
Another way to limit your personal liability is to run your business as a limited liability company, which, like incorporating, gives you some advantageous tax consequences. See the “Business Formation: LLCs & Corporations” section of the Nolo website (www.nolo.com) for free articles on business ownership structures, and check out Nolo books and online forms that show you how to form a corporation or an LLC.