By Colin McCarthy, J.D., Robinson & Wood, San Jose, CA

As everyone knows, Monty Python and the Holy Grail is the greatest movie ever made. Especially for the scene involving the Killer Rabbit of Caerbannog. In it, several of the Knights of the Round Table are cut down in a blood bath by a particularly vicious, cute, cuddly white bunny rabbit. Why? They were not aware of its dangerous propensities! Their Scottish guide tried to warn them before the unlucky Knights marched into certain death. He tried, but they wouldn’t listen.*

We have already discussed the issue of control as being the hook on which a landlord will/can be liable for injuries related to property. If the landlord has control over the property in question, and could have taken steps to prevent an injury because of that control, they will not be able to avoid responsibility for injuries related to dangerous conditions on that property they control. Which leads to the obvious question: What about dogs?

Well, I mean animals. Cats, Parakeets, Vicious bunnies, etc. What’s a landlord to do about these animals? Well, again, it’s all very clear. It depends on how dangerous the particular animal is, what the landlord knows, and where the animal is.

If the animal is not on property the landlord controls, there is no duty. This is in accord with our earlier control discussion. However, if the animal is a permanent guest of the landlord’s tenant, the issue is two-fold:

1. The animal’s dangerous propensity.

2. The landlord’s knowledge of the same.

Regarding the first, the question focuses on the animal’s tendencies. Is it a vicious animal, i.e. does it have known behaviors that are likely or have a tendency to cause harm? For example, dogs that bite are construed as vicious. Even dogs which are unusually large and happy, that create a fall hazard, can be construed as being dangerous.

This was the issue in a case that I litigated a long time ago. The whole issue was whether a large dog had a known propensity to greet visitors in a particular fashion which subjected the visitors to a fall risk. The plaintiff was so greeted and injured herself. The issue was prior knowledge of the propensity and whether it was dangerous. The dog owner was the defendant, but the landlord might have been liable, IF . . .

The landlord had knowledge of the tenant’s animal’s dangerous propensities. If they had no knowledge of the animals, the landlord is not likely liable. If they did know, then they may be found liable for – wait for it – not removing the animal by evicting its owner. It is the failure to use reasonable care in this regard, if it leads to injury to a third party, which attaches liability.

The Scottish guide, in the Holy Grail, who had knowledge of the bunny’s dangerous propensities, did what the law might require of a landlord in California. He warned of the animals dangerous propensities. Had the guide owned or controlled the property on which the dangerous bunny was present, he could’ve and maybe should’ve evicted that owner, and thus protected any visitors to the premises from its vicious attacks!

* After several knights were felled by the vicious bunny, the rest of the knights and King Arthur had to resort to the old reliable: Holy Hand Grenade of Antioch.

This blog submission is only for purposes of disseminating information. It does not constitute legal advice. The statements in this blog submission do not necessarily reflect the opinions of Robinson & Wood, Inc. or its clients. No attorney-client relationship is formed by virtue of reading this blog entry or submitting a comment thereto. If you need legal advice, please hire a licensed attorney in your state.

By Colin McCarthy, J.D., Robinson & Wood, San Jose, CA

I once lived in a house in downtown San Jose that was next to an abandoned “historic” house. The house was only abandoned because it was “historic.” The city had an ordinance that prevented the owner from demolishing the building and rebuilding it, or selling it. Because the house was built before a certain time, the city ordinance prohibited him from doing anything with the property other than fixing it up. Rather than doing that, in protest, he did nothing with the property. And I mean nothing, other than board it up.

Mistake! You see it was downtown San Jose. It was right in the middle of urban, night time activities. The abandoned home soon became a sort of an attractive spot for the seedier and less fortunate souls. We frequently had to call the police. There were the typical late night guests, drinking, broken glass, and other non-printable activities going on in there. After enough of these visits, the neighbors reported the landlord to the city, and hearings were held. Fines were levied. Landlords got mad. Fences were put up.

Pulling the restrictive ordinance and the obstinacy of the landlord out of the equation, the landlord had a duty to know what was going on at his property. He should have inspected it, even if he did not have tenants.

What kinds of things can happen, from a legal perspective, if you do not inspect and repair? What will happen if the property falls into disrepair under your watch? Well, you can be sued for breach of contract. But if it gets really bad, you can be sued for a tort, too. How about for emotional distressed caused by an uninhabitable residence? For unfair business practices?

At least in California you can. Consider the facts in a case we cited in a recent post:

“Regarding the condition of the subject premises, appellant alleged that: ‘On or about October 8, 1974, to the present, numerous defective and dangerous conditions were in existence, including, but not limited to leaking of sewage from the bathroom plumbing; defective and dangerous electrical wiring; structural weaknesses in the walls; deteriorated flooring; falling ceiling; leaking roof; dilapidated doors; broken windows; and other unsafe and dangerous conditions. These defective conditions were unknown to plaintiff at the time she moved in to the premises, but as she continued to live on the premises, she became increasingly aware of them.” (Italics added.)

Also attached to the complaint was a copy of the Kern County Health Department’s notice to vacate and demolish the subject premises, which listed the following violations among others: heavy cockroach infestation, broken interior walls, broken deteriorated flooring on front porch, falling ceiling, deteriorated, overfused electrical wiring, lack of proper plumbing connection to sewage system in bathroom, sewage under bathroom floor, leaking roof, broken windows, and fire hazard.”*

Pretty bad, no doubt. But this particular landlord was sued not only for rent, but for the intentional infliction of emotional distress the tenant suffered. She repeatedly asked for repairs and informed the landlord of these problems. He did nothing. She informed him again. He did nothing. She did what all smart people do in such circumstances. She talked to a lawyer and sued.

At first it did not look good. The trial court limited her to breach of implied warranty of habitability, and limited her damages to rent payment. The appellate court disagreed, and allowed her to sue for all manner of civil wrongs related to the landlord’s alleged intentional neglect.

And although it’s not a discussion for this post, most insurance policies do not cover damages caused by intentional conduct. So not only was this landlord being sued, his insurance company might not have paid for any award against him.

So remember. If a tenant asks for a repair, don’t ignore. Inspect.

*Stoiber v. Honeychuck, 101 Cal. App. 3d 903, 912 (1980)

This blog submission is only for purposes of disseminating information. It does not constitute legal advice. The statements in these blog submissions do not necessarily reflect the opinions of Robinson & Wood, Inc. or its clients. No attorney-client relationship is formed by virtue of reading this blog entry or submitting a comment thereto. If you need legal advice, please hire a licensed attorney in your state.

By Colin McCarthy, J.D., Robinson & Wood, San Jose, CA

I enjoyed philosophy classes in college. I enjoyed thinking about such questions, as: If a tree falls in the forest and no one hears it, does it make a sound? I enjoyed even more Bart Simpson’s reply to the question: What is the sound of one hand clapping? (He immediately held up his one hand and patted his fingers against his palm, making a muted clapping sound).

My enjoyment of these questions has found a natural outlet in the law. The law ostensibly provides you with an answer, whether it be found in a book, or in a code section, or recommended by experts. So it is one of those questions today that is our focus: If a tenant hurts himself in an apartment and the landlord did not know about the condition which caused the injury, was the landlord at fault?

As is always the case, the answer in law is perfectly clear: it depends. There is a duty to inspect premises when the property is given to the tenant. Landlords are in the best position to assess the relative safety of the property before the tenant takes control, so they should inspect and repair as needed. The inspection should comport with general negligence principles – i.e. be “reasonable” and make it “reasonably safe.” *

Yes, but how do we know if it is reasonable? Well that answer is clear and simple and straightforward: it depends. It depends on the facts of your case! In California:

“The burden of reducing or avoiding the risk and the likelihood of injury will affect the determination of what constitutes a reasonable inspection. The landlord’s obligation is only to do what is reasonable under the circumstances. The landlord need not take extraordinary measures or make unreasonable expenditures of time and money in trying to discover hazards unless the circumstances so warrant.”**

Clear as mud, right? So we fall back on common sense. If you are intimately familiar with the property you are about to rent – having lived there for five years – your duty to inspect probably is not great. You know what works, what does not, what is likely to injure (hopefully not much), and what is not. You know where the cracks in the slab in the garage are. In contrast, if you are not familiar with the property, you ought to conduct a more thorough inspection. If you just bought the property and have not had extensive time with it, you might consider a more thorough inspection. You might document what you find and give it to the tenant in writing, or repair as required.

Obviously, as we’ve discussed previously, if the inspection uncovers something dangerous, you ought to repair the condition before giving possession to the tenant. But if there is an open and obvious condition that is itself a warning to and is patent to the tenant that it is dangerous, the landlord might not be liable for any resultant injuries.

And further, if one possesses legal title but does not yet have control – that key word in our liability analysis – they cannot be held liable for injuries. If they have no opportunity to inspect and/or repair, their liability is usually precluded.

*Swanberg v. O’Mectin, 157 CA3d 325 (1984)

**Mora v. Baker Commodities, Inc., 210 Cal. App.3d 771, 782 (1989)

This blog submission is only for purposes of disseminating information. It does not constitute legal advice. The statements in these blog submissions do not necessarily reflect the opinions of Robinson & Wood, Inc. or its clients. No attorney-client relationship is formed by virtue of reading this blog entry or submitting a comment thereto. If you need legal advice, please hire a licensed attorney in your state.

By Colin McCarthy, J.D., Robinson & Wood, San Jose, CA

Even after our little spigot fiasco, my father and I are speaking again. In fact, it did not take long. We both bonded over the fact that later that night, my wife and I walked out of the George Clooney movie, The Descendants. My wife and I both were bored out of our minds and had little empathy for a guy who owned all of Hawaii. I mean, really? I’m supposed to feel sorry for this guy?! Dad, being generally anti-Hollywood, applauded our decision to vacate the movie theater in favor of the bar next door.

We got to talking, and we agreed that in the future, it would be best if I not ask him to do repairs on our house. It’s not really something I should delegate to him. We decided on the McCarthy “non-delegable duty of repairs” rule – I must do my own repairs.

By operation of law in California, a landlord also has a non-delegable duty regarding repairs. If the negligent – grossly negligent one might argue – repairs my father attempted were on a tenant’s dwelling that I rented out, I still would be liable for any injuries it caused. So if the tenant got hurt from this negligent repair, they could still sue me.

A landlord cannot escape liability for his repair duties by having someone else do the repairs. This duty to repair is “non-delegable.” Thus when a landlord hires a plumber, or other handyman to do a repair, if the plumber or handyman does not do it correctly, and an injury results, the landlord is still liable. Some examples of cases which held the duty to repair as non-delegable, and exposed the landlord to liability include:

• Sink in a school bathroom
• Water heater
• Roof
• Elevators
• Proper waxing of floors

Thus when a landlord hires a subcontractor in California to perform repairs on these or other fixtures, but does not repair them correctly, liability will attach for any later injuries.

The landlord certainly can seek redress from the subcontractor. If the plumber messes up the repair and injury results, when the landlord gets sued, he can sue the plumber (full employment of attorneys act, its true).

In many cases, the contract between the landlord and the independent contractor should cover such instances. It should spell out – expressly – who is responsible for what and that the independent contractor will be responsible to hold the landlord harmless from any suits. We’ll talk about contractual provisions with respect to some of these duties in later posts.

This blog submission is only for purposes of disseminating information. It does not constitute legal advice. The statements in this blog submission do not necessarily reflect the opinions of Robinson & Wood, Inc. or its clients. No attorney-client relationship is formed by virtue of reading this blog entry or submitting a comment thereto. If you need legal advice, please hire a licensed attorney in your state.

By Colin McCarthy, J.D., Robinson & Wood, San Jose, CA

Well, hello there and happy 2012 to you all. It has been a little bit of time since we have had a chance to chat. I will beg your forgiveness for being pre-occupied with year end duties, and a jury trial in Visalia, California that preoccupied my time and has prevented me from indulging in the blogging world. Now that I am able to focus, I want to talk to you about every one’s favorite topic – repairs – from everyone’s favorite perspective – a lawyer.

But before I do, I’ll share with you how I spent my New Year’s Eve. It’s a story that pretty much exemplifies why it is important to have a good handyman at your disposal. And why it is important that you not rely on your father to do repairs at your home or your leased property.

As is the case with a lot of you, my parents came to see their grandchildren for Christmas. They did not come to see me or my lovely wife. They wanted to see my kids while they are still cute, and say and do precious things. I recognize this and accept it. My little brother will soon benefit from this phenomenon. For the first time, my parents will actually go to see him in the cesspool (I mean lovely city) that is Los Angeles*.

As payback for this parental neglect, I frequently use the visits as the opportunity to enlist my father in helping me with home repair. This time, I had a leaking external water spigot in the back yard that was opening the spigot – if you will – on my water bill. So I asked dear old Dad to assist, knowing (but always forgetting) how he does these things.

He waited until December 31, 2011 to start. He waited until 4 p.m. in the afternoon to start. He had a 7 p.m. dinner appointment with friends. After assessing the situation, he decided that we may as well replace the spigot in the driveway because it was the same vintage and bound to fail soon, too. So off to Orchard Supply we went and purchased our replacement parts. We successfully installed the new spigot in the back yard in about 10 minutes.

The driveway spigot proved more challenging. We could not get it off. Not easily anyways. We did manage to get some of it off – the rest remained rusted and in place. The problem with only getting part of the spigot off and not all of it was, in this case, that there was no way to stop the water from escaping. Unless we turned the water off. So we did.

Not a big deal. Except that we did not have the tools to get the rest of it off. Except that OSH was closing. Except that Dad was going to a dinner party in about 20 minutes. Except that OSH was closed on New Year’s Day. Except that we have three little ones that need frequent bathing. Except that we needed to be able to flush the toilets. Etc. So Dad goes under the subfloor looking for a close out valve for this particular water line. Mom is at the doorway wondering when she is going to the dinner party. My wife is wondering what is going on. Dad swears like its 1984 and he’s working on the VW bus. Then throws his hands up and says, “I have to go to the dinner party.”

Lucky for me, my neighbor, who is a handyman, was home and looking for some extra cash. An hour and a $150 later, problem solved. Negligent repair made non-negligent. Water on. Kids clean. Toilets flushable. McCarthy residence, habitable.

And so it is, too, your landlord’s responsibility to make your property “habitable” by competent repairs. A landlord’s failure to maintain and repair the dwelling he has rented you entitles you to, in some cases in California, refrain from paying rent related to the dilapidated condition of the dwelling**. If the failure to repair interferes with the tenant’s ability to live in the dwelling, they may be free from rent obligations until the situation is corrected***.

So clearly, the lesson of this blog post is: do not let your father do repairs at your house or any rental properties.

*He’s actually in Redondo Beach, which is cool. And where John Travolta’s character in Pulp Fiction resides.

** Stoiber v. Honeychuck, 101 CA3d 903 (1980)

***Green v. Superior Court, 10 Cal.3d 151 (1974).

This blog submission is only for purposes of disseminating information. It does not constitute legal advice. The statements in this blog submissions do not necessarily reflect the opinions of Robinson & Wood, Inc. or its clients. No attorney-client relationship is formed by virtue of reading this blog entry or submitting a comment thereto. If you need legal advice, please hire a licensed attorney in your state.

By Salvatore Friscia, San Diego Premier Property Management, San Diego, CA

In a recent notice received by our legal counsel addressing this very issue, apparently if you own rental property in California the scary answer is yes! The great state of California is widely known as a pro-tenant state when it comes to tenant-landlord related issues. Many cities such as San Francisco and Los Angeles are saddled with pockets of rent controlled areas making investment opportunities less attractive. They also have unfavorable statewide eviction laws that allow deadbeat tenants to continue residing in properties months after defaulting on rental payments.

So this should come as no surprise that according to state law if the tenant is licensed by the California State Department of Social Services (DSS) it only takes a thirty day written notice of their intent to legally start and operate a day care center without the permission of the landlord if the total number of children under care, including the children of the tenant, is limited to six. In fact, permission from the landlord is only necessary if the tenant chooses to increase the total number of children under care to eight. The licensed provider does need to have adequate insurance or be bonded. They must simply provide each parent, in writing, a notice that states the landlord’s insurance will not cover any issues should they arise – how reassuring. In fact, the landlord’s only recourse is that they can require the tenant to increase the security deposit to the maximum allowed by law. This is two times the rental rate if unfurnished and three times if furnished. The landlord is unfairly burdened with extra cost including, but not limited to, increased fees in liability coverage, out of pocket expenses for extra precautions to limit potential dangerous issues, and increased potential for additional wear and tear on the subject property. Most strikingly, the landlord loses control of determining if they approve or disapprove of this type of rental relationship. If they act by refusing to renew the rental agreement they run the risk of inviting a retaliation lawsuit from the tenant! This brings me to ponder a couple of questions, has the state overreached in providing this tenant right and does that seem like a fair exchange for the landlords?

By Carla Toebe, New Century Realty, Kennewick, WA

They say that abandonment is a landlord’s or property manager’s worst nightmare when dealing with a tenant. How do you know it is really abandonment? Sometimes it’s obvious when everything is gone, the place seems perfectly empty, and the tenant’s keys are lying on the counter. But what if the place is full of furniture, the food is still in the cupboard, and you can’t get a hold of them? They haven’t paid their rent, they haven’t returned your phone calls, no one has seen them, and you can’t get a hold of anyone on the emergency contact form you had them complete when they moved in. Surely this means they must have abandoned the place. So you change the locks, and uh-oh! There they are coming back claiming you have now burglarized their place. Oh no! This can’t be, they clearly abandoned the place and you took all the steps you had to take that were required by law.

Maybe it isn’t that clear cut. Maybe a tenant still has some rights. Now you are facing penalties, a criminal investigation, and a whole slew of troubles you never knew you had. Let’s back up and figure out how to determine that this is really abandonment and you have the right to take possession of your unit.

You spelled out what abandonment was with your tenant and you had it written in the lease, right? Good, well at least you tried to get the tenant on board with your ideas. Unfortunately they have forgotten about your request for them to tell you they have left, and to turn in their keys. That would be the easy thing to do. However, they don’t want you to know they have left because they are in a hurry, that they are embarrassed that they have to leave owing rent, or that they had to leave things such a mess. They may not want to face you or deal with any of these responsibilities. Maybe they could have left a note telling you to dispose of everything there, and that they are not coming back.

Why didn’t they think of these things for you? Unfortunately abandonment isn’t always so sweet and simple. Usually you have to determine without any doubt and with full public notice of some sort that you intend to declare the place abandoned. You also have to hold onto any property left for so many days prior to disposing or selling it. Each state has their own set of laws and it is very important to become familiar with the particulars of the process to establish abandonment because that tenant could come back. Now you are now expected to return everything that you just disposed of because you thought it was left behind.

Write your abandonment process down if you haven’t already so that tenants, anyone who works for you taking care of the units, and owners who are hands on, consistently follow the appropriate process. Make sure that your complete process complies with the state laws. It may be helpful to have an attorney review it.

Typically in order to establish abandonment, the tenant must be late on the rent and they must have not responded to a 3 day notice to pay or quit that you mailed and put on their door. They have also not responded to an abandonment notice that you put on their door for all to see after 48 hours. What if they are just gone for 5 days and forgot to pay rent? Well you need to start calling their personal phone numbers, work numbers, relatives, friends, neighbors, and anyone you can think of that might know them in order to validate that they are really gone. You need to check and see if their vehicles have been parked there at all during this time. You also need to check with the utility companies to see if any service has been disconnected. In other words, ask around, do some investigating, and document all that you have done.

Once you are inside because the evidence all points to the fact that they have abandoned the unit, take a picture of that abandonment notice still stuck to the door and a picture and/or video of everything inside that has been left behind. Carefully store all items that are clearly not garbage and place it into a safe secure location for the length of time required by law. I don’t know how many times I have seen someone dump everything outside for all bargain hunters in the neighborhood to come around and clear away. Do not fall into that temptation as appealing as it sounds! It is the worst thing to do and it is not worth the potential harm that a little effort would prevent. Do the right things, know the laws, and know what the process should be.

If you are a tenant, please let someone know that you have left. If you don’t, it will cost you more money in the long run than it would have if you just let your landlord or property manager know when you left the property. Avoid getting into legal troubles over abandonment, turn in your keys and leave a note!

A guest post by Michael Gonzalez, Melrose-Sovereign, Orlando, FL

When you live in a condo association, you are guaranteed certain property rights. With good property management, your rights are guaranteed in your governing documents, and one of the most important of these is the definition of “Common Elements.” These elements constitute all of the community that is not included within the units (hallways, lobbies, elevators, etc…). “Common Elements” also include easements through units for conduits, ducts, plumbing and wiring. These rights are common in most condo associations, and they are often not fully understood by their residents. We have recently come across a situation that represents this.

A cable company violated a resident’s property rights by drilling and running a television cable through the closet on their balcony. The cable company said that they were given permission by the condo association board, however, the closet on the resident’s porch is not technically “common space.” The closet is considered part of the unit as defined by the association’s governing documents. The resident’s cable was violating the property rights of the unit below them and their property rights were being violated by the unit above them. When the resident questioned the cable installer about it, he simply said that the association board gave him permission to do this. This is a violation of the owner’s rights because the wiring that was being installed was obstructing the resident’s use of the closet, so they demanded that the cable be relocated. The previous television cable was run through the walls, which is a much more aesthetically pleasing solution and does not violate the resident’s property rights, as the walls are a part of the “Common Elements.” The owner was eventually able to get the cable relocated and the association board apologized.

This story shows the benefits of understanding your rights and how to exercise them. It is very important to have a full understanding of the governing documents of your association such as the CC&R’s and bylaws. These documents are the laws of your association and understanding them will allow you to recognize any inconsistencies should they arise. It can also be valuable to ask questions of your association’s contractors to see exactly what they are doing. They could be violating your rights and you may not even realize it. When living in community environments, like condos, the value of your condo relies heavily on the others in your building. If their property rights are violated, it can have a negative effect on you and your living situation. This is why it is important to make sure you have a well-informed community and that you exercise your rights. To learn more about HOA management and community associations, visit www.melrose-sovereign.com.

By Colin McCarthy, J.D., Robinson & Wood, San Jose, CA

Over the last few posts, we’ve discussed premises liability, landlord duties, and obvious dangers, among other things. Today we’ll discuss an issue in California that gets people excited - a landlord’s duty to prevent criminal acts.

Nothing gets people more excited than the idea that a landlord might have an affirmative duty to prevent or intervene in the actions of a third party to prevent a person on his or her property from becoming the victim of a crime. On the face of it, this duty feels like it falls outside the scope of a landlord’s duties. Isn’t that the job of the police? A property owner can’t be a substitute for the police and common sense, the argument goes.

That may be true, but if we rely on common negligence principles – and California courts do – then liability can attach in certain circumstances for failure to take steps to mitigate against such third party criminal conduct.

The owner/lessor/occupier/person who controls the property has a “general duty [which] includes not only the duty to inspect the premises in order to uncover dangerous conditions, but, as well, the duty to take affirmative action to control the wrongful acts of third persons which threaten [persons on the property] where [he] has reasonable cause to anticipate such acts and the probability of injury resulting therefrom.”*

The key to attaching liability is the part about having “reasonable cause to anticipate” the criminal activity and the likelihood of harm. In other words, if the landlord knows that his rented property is being used by violent drug dealers to conduct criminal activity, he may have a duty to act. If the landlord knows that the lack of lighting in the property’s parking garage has contributed to muggings, he may have a duty to act to prevent injury.

The scope of the duty to act is tied to the knowledge of potential injury which would occur by the third party criminal act. As we’ve previously seen in my post about replacing window glass, the scope of the requested action there was very small: replace a window pane for $17 dollars. The duty imposed there was not to hire security guards to prevent murder, but merely to replace a broken window pane that was close to the door handle and lock. It is not unreasonable to think that someone might have broken into the house if the pane was not replaced.

A different situation arises if the integrity of the property is not an issue but knowledge of criminal activity is. Fights happen. A landlord is not usually liable for a one-off fight. But he may be if he knows that fights are continually occurring on his property. The scope of the duty for a landlord or business owner to provide something akin to security guards exists “only when ‘heightened’ foreseeability of third party criminal activity on the premises exists—shown by prior similar incidents or other indications of a reasonably foreseeable risk of violent criminal assaults in that location.”** Does the California rule make sense?

* Taken from Taylor v. Centennial Bowl, Inc.,  65 Cal. 2d 114, 121 (Cal.1966)
** Taken from Delgado v. Trax Bar & Grill, 36 Cal. 4th 224, 240 (Cal. 2005)

This blog submission is only for purposes of disseminating information.  It does not constitute legal advice.  The statements in this blog submissions do not necessarily reflect the opinions of Robinson & Wood, Inc. or its clients.  No attorney-client relationship is formed by virtue of reading this blog entry or submitting a comment thereto.  If you need legal advice, please hire a licensed attorney in your state.

By Colin McCarthy, J.D., Robinson & Wood, San Jose, CA

Let’s continue with figuring out the basis for how a tenant can recover against someone for an injury due to an unsafe condition on the property.

I say “someone” because as we have seen previously, it does not need to be the landlord who gets sued.  It can be the lessor, the “occupier,” or anyone who “controls” the property.  The last one may seem a bit redundant, but it is not.  Certainly the person occupying the premises exerts control over it.  Same for the owner.  Even if he is renting out the property, he has control over repairs accomplished, signs to be placed on it, fences to be built, etc.

But there can be situations in which a person does not own or occupy land, but nonetheless controls it.  In California, “a person controls property that he or she does not own or lease when he or she uses the property as if it were his or her own.  A person is responsible for maintaining, in reasonably safe condition, all areas he or she controls.”

Where does this situation arise? It does not arise from “simple maintenance.”  If for example, you were mowing a strip of lawn that adjoins your property but is not on it, this alone will not constitute control.  But “maintenance” is a factor to consider in control over the property.  However by itself, being “neighborly” in this manner will not usually constitute control such as to attach liability for an injury that occurs there.

I had a case once where we represented a landowner being sued for an injury that occurred off the property.  The plaintiff was leaving the premises late at night.  It was rural but close to urban, if that makes any sense.  Two of the publicly maintained streetlights were out.  An individual driving a car – he was probably overloaded on Vicodin due to a skateboarding injury he had recently had – forgot to turn his lights on.  The plaintiff did not see him due to the absence of his car lights and, possibly, the streetlights.  She stepped in front of the car and was badly hurt when the car hit her.  The driver did not have any insurance, so she sued the adjoining landowner.

Her initial theory was that our client “controlled” the publicly maintained streetlights which were out.  When I sucessfully objected on the grounds that an adjoining landlowner does not “control” the public streetlights, the plaintiff changed her theory.  Next, she alleged that two parking lot lights which were on our property were also out, and that if these lights were on she would not have been hit.

I almost had her out on this theory as well, but I will tell you about that over a beer sometime.  She was able to proceed and there was an interesting discovery involving witnesses to the accident and lighting experts- were the lights on or off?  Did the plaintiff’s counsel visit you, Mr. Neutral witness, at your house and show you pictures of the injured plaintiff before you testifified in this case? Was I there when this happened?

Ladies and gentlemen of the jury I submit to you that the lights my client controlled were on, and well maintained.  There may have been some public street lights that were not on . . .

This blog submission is only for purposes of disseminating information.  It does not constitute legal advice.  The statements in this blog submissions do not necessarily reflect the opinions of Robinson & Wood, Inc. or its clients.  No attorney-client relationship is formed by virtue of reading this blog entry or submitting a comment thereto.  If you need legal advice, please hire a licensed attorney in your state.