Your landlord’s basic duty of care

Colin McCarthy
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Published on September 13, 2011

When she is not busy mowing your lawn, replacing the water heater, raising your children*, and doing other upkeep of the home/residence she leases to you, your landlord is busy fulfilling some basic “duties.”   She has to avoid being negligent so that you don’t sue her.  How do we know if she is negligent?  How do we know if she has a duty to us?

Well, a landlord, or indeed, any “owner/lessor/occupier/controller of property isBuildium property managemen software “negligent”** when she is not careful in keeping the property in a condition which does not injure people or property.  Indeed, California goes further.  She “must use reasonable care to discover any unsafe conditions and to repair, replace, or give adequate warning of anything that could be reasonably expected to harm others.” ***

So California basically requires a landlord to make sure that property she owns/leases/controls is safe and that she should make efforts to determine if there are unsafe conditions.   You have to inspect.  When and how often to inspect, that depends on the circumstances.

Here are some “factors” which are considered in deciding whether a defendant in a premises liability case was careful enough:

  1. The location of the property – where is it? Was it remote and not frequently trafficked or was it next to a school or a liquor store?
  2. How likely it was someone would enter the property as did the plaintiff; Was plaintiff a burglar on the roof who fell through a skylight, or was this a house rented to college kids who are known to throw a lot of parties?
  3. How likely it was that he’d be harmed in these circumstances; Was the crack in the faucet advanced? Was the hole in the back yard really deep?
  4. Whether he’d be seriously harmed in these circumstances; Was the faucet made out of plastic?  Did the hole have wooden stakes in the bottom, as in Dracula 1972 A.D.?
  5. Whether the defendant should have known about the aspect of the property that caused the harm; Did the tenant tell you that the faucet broke yesterday?  Did you know that Van Helsing was sleeping on your tenant’s couch?
  6. How difficult it would have been for the defendant to protect against the risk of that harm; Would it have been easy to replace the faucet? Could you have reminded your tenant that no guests are permitted beyond overnight stays?
  7. The extent of the defendant’s control over the condition that caused the harm.  Was there enough time for you to fix the faucet, given California’s 24 hour notice provisions?  Was the landlord required to or did he have the opportunity/right to fill up the dirt hole or remove the wooden stakes?

The Court instructs the jury to consider all of these under consideration and will also consider other factors.  Collectively, these factors probably amount to a common sense test.  If you know about a broken faucet, fix it.

*Most landlords do not do this. It was a joke.

**Lawyer word.  Try not to incorporate into your daily conversation.

***California Civil Jury Instructions, CACI 1001

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.

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Colin McCarthy

Colin G. McCarthy is a partner in the business litigation, products liability, and insurance practice groups at Robinson & Wood in San Jose, California.

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