BY SCOT AUBREY ON DECEMBER 14, 2022
Scot Aubrey says if you’ve spent more than 30 seconds in the last year watching cable news, you are more than familiar with something called “the blame game.” Regardless of political party affiliation, age, race, gender, sexual preference or any of a host of other categories, it appears that our society has become a place of great divide. As a landlord you are not immune to this growing epidemic of blame and in fact, you’re likely to take more than your fair share of blame when it comes to tenants and their problems. Click here to read more.
After all, those same media outlets have spent years painting the picture of the “big, bad landlord,” creating an evil, money focused image that even the happiest of tenants sometime buy into believing. The reality is, you are going to get blamed, but are you liable?
Let’s create a blame framework for this by using a scenario where a tenant or guest of a tenant is injured by a weapon that the landlord allowed on the property. To create some protection for you as a landlord we must first turn to the general principle of negligence law and liability. It is helpful to understand the basic law and how to apply it in a real landlord/tenant situation. Every landlord must have a handle on these basic principles so we will discuss the law and then get back to the questions. Whatever the cause of the injury/damages to the tenant, occupant, guest, or invitee, the landlord does have some basic duties to the tenant in every residential lease, single family or multi-family of every kind and variety.
Here is the basic legal test for this scenario:
- Duty: Generally, the duty of the Landlord is to provide a reasonably safe place to live for the tenant, occupants, guests, and invitees (and there may be more than just this duty, depending on the lease and the applicable laws). The basic legal theory about a landlord’s duty from settled case law is, “if the Landlord knew or should have known about a danger or peril in, or on, the property, the Landlord must ensure reasonable and timely remedies to prevent damages (injuries) to whom the Landlord owes the duty of reasonable safety.” Did the Landlord have a duty to allow the tenant to have a weapon inside of the private, inside quarters of the home that the tenant controls in order to protect the Tenant’s family/household? That is a big question. Arguably, if the tenant had nothing in their background that would put a landlord on notice that the Tenant had a propensity for violence, and the Tenant is “an ordinary, law-abiding citizen” why would anyone not allow that person to have adequate home protection. So, is there such a duty? The question does not seem to be resolved by any Court. Although, some States prohibit a landlord from such a prohibition. Do you want to fight this case in Court?
- Causation: “But for” the Landlord’s actions or inactions, would a particular event or damage have occurred. “But for” the Landlord allowing the tenant to have a weapon for protection, would the injury/damage likely not have not occurred. Here the answer is probably, yes.
- Foreseeability: Even if there is a duty and there is causation, there is one more test to be applied before we can determine if the Landlord actually has any liability for the damages/injuries. Was it foreseeable by a reasonable person that if the Landlord allowed the Tenant to have a weapon to protect his/her private home that this very injury/damage would take place? Here the answer is again probably, yes.
I suggest running any scenario where you as a landlord feel you may be vulnerable through the three prongs of the legal test as described above. In fact, I invite you to do that right now with the above scenario, only reversed, where the landlord prohibited their tenant from having a weapon on the property and the tenant or their guest was injured because they did not have a weapon for self-defense. Is it your duty to restrict a weapon being on the property for personal protection? Can prohibiting a weapon create an adverse situation? Can you foresee a situation where someone is injured or worst because they were not able to use a weapon for defense?
What is the course for best practices to avoid blame and liability? Examine your property, your practices, and your policies through the lens of an attorney and make the proper adjustments to boost the protection of both your tenant and your property. After all, the best way to avoid any blame at all is to anticipate potential problems, remedy them, and document what you have done.
Scot Aubrey is Vice-President for Rent Perfect, a private investigator, and manages short- term rentals. Subscribe to the weekly Rent Perfect Podcast (available on YouTube, Spotify, and Apple Podcasts) to stay up to date on the latest industry news and for expert tips on how to manage your properties.
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