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Landlords Need To Take Measures Against Foreseeable Harm

Written by on Monday, 29 September 2014 12:47 pm
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Landlords have duties to tenants beyond that of providing habitable premises with working heating and plumbing systems, roofs that don't leak, etc. They also must take reasonable measures to protect tenants from foreseeable harm that might result from conditions on the premises. Such harm includes possible criminal acts.

A decision by California's Fourth Appellate District Court of Appeal includes an instructive discussion of these matters. The case (Vasquez v. Residential Investments) from which the discussion arises has facts that range from mundane to tragic.

Abigail Ramirez and her infant daughter lived with Abigail's parents in an apartment building owned by Residential Investments, Inc. When the family moved in, a glass pane was missing from an arrangement of glass panes on the top half of the door. A piece of cardboard covered the opening. The tenants made a number of requests that the pane be replaced. They felt that its absence created a security risk. After some length of time, Abigail's brother replaced the cardboard with a piece of plywood that he affixed using finishing nails.

Some time later, Abigail, who had recently been living with her boyfriend (the father of her daughter) moved back into the apartment of her parents. Her boyfriend, Jesus Vasquez, who had heard that Abigail had been seeing someone else, came to the apartment armed with a knife. When he was refused entry, he pushed out the plywood piece, reached through the opening and opened the door from the inside. He then killed Abigail.

The lawsuit against Residential Investments was brought on behalf of the infant daughter. It alleged that the owners were negligent by not replacing the missing pane, and that the negligence was a direct and proximate cause of Abigail's death. In defense, the apartment owners argued that property owners have no duty to take precautions against criminal activity that they had no reason to anticipate. The trial court ruled in favor of the defense and granted summary judgment, holding that the incident was not sufficiently foreseeable so as to give the owner's a duty to prevent Vasquez from gaining entry to the apartment.

The appellate court reversed the trial court's decision, and sent the case back for trial. The appellate court did not say that the owner's were, in fact, negligent; but it did say that it was a triable issue, one that a jury should decide on the basis of the facts of the case.

In its discussion the court noted that the law is clear on the point that there is "…a duty by landowners to maintain property in their possession and control in a reasonably safe condition." But then the court went on to acknowledge that this is, at best, a general principle that gives no specific direction. The discussion points out that the determination of duty requires a balancing act in each particular case. A landlord has a duty to exercise reasonable care, but what is reasonable depends on the circumstances, "…considering the foreseeability of the risk of harm balanced against the extent of the burden of eliminating or mitigating that risk."

The court's discussion reviewed a long list of landlord liability cases (the legal landscape is, of course, littered with them). Of particular note was one in which a landlord had failed to fix a lock to a common hallway, thus making it possible for an intruder to enter and rape one of the tenants. Although rape had never before occurred on those premises, robbery had. The court held that, even though the foreseeability of a rape occurring might have been slight, the foreseeability of criminal activity was stronger. Moreover, the burden of repairing the lock was minimal. Hence, the landlord had a duty to do so; and the failure to do so constituted negligence. He did not have a duty to guarantee the safety of his tenants, but he certainly had a duty to maintain a "first line of defense."

In this decision a ruling from a Georgia court was approvingly quoted: "The landlord is no insurer of his (or her) tenant's safety, but … is certainly no bystander." The moral here for landlords -- fix the locks. And take care of other matters that constitute risks of foreseeable harm.

Bob Hunt is a director of the California Association of Realtors®. He is the author of Real Estate the Ethical Way.

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