This article was posted on Sunday, Nov 01, 2015

Q: I was notified that one of my tenant’s children broke a staircase railing at one of my apartment buildings. The railing is in the stairway that all tenants must use to access their apartments. I have repeatedly asked the tenant whose child broke the railing to repair it, telling them how dangerous it is, but they are refusing. If someone falls could I be held liable for their injuries even though I have repeatedly asked the tenant to repair it?

Yes.  As a landlord, you have a duty to maintain your apartment building and to take necessary steps to prevent any likely or probable injuries.  The railing should be fixed as soon as possible.  Here, you are aware that the railing is in disrepair thus you could be partially or completely liable if someone gets injured. It is in your best interest to spend the money to repair the rail then attempt to collect the cost of the repair from the tenant.  

Q: What if someone breaks the railing and none of my tenants notify me and I don’t notice the railing is broken, and then someone falls and is injured, would I still be liable?

It depends.  The difference here is that you were not aware that the railing was defective and posed a potential risk of injury to others.  However, that being said, you do have a duty to make routine inspections of your building and/or rental unit to look for defects or other hazards like this so that you may take care of them before they become a potential danger to others. If you never inspect the building and a routine inspection would have easily revealed the broken railing, then you could be on the hook for someone’s injuries caused by the railing. The key is to take care of any potential issues you know about, or should know about, that could cause someone injury.

Q: I have a tenant who smokes multiple cigarettes every day in the common area of my apartment complex. Another tenant who lives in this area is complaining that cigarette smoke is hazardous to her child’s health because her child has asthma.  Can I be liable if the child gets sick or has to be hospitalized due to the smoke?  If so, what can I do?

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You could be liable if you do nothing to address the tenant smoking in a common area that is close enough to another tenant’s window to cause her child to be sick.  As of January 1, 2012 you have the right to prohibit cigarette smoking on the property of the building, be it inside a particular unit or in a common area.  You could add a provision that designates the areas where the tenant cannot smoke on the premises in your lease agreement.  You can then serve the tenant with a notice to enforce this provision if he smokes in the common area (and his lease states that smoking in the common area is prohibited).  If the tenant has been living at the property since before January 1, 2012, or he has a fixed term lease without a smoking provision, you can still serve him with a notice to prohibit smoking if it causes a nuisance to other tenants, such as in the situation above.  If you are not sure what to do in your particular situation, you should consult an attorney.

Q. I’ve noticed that two of my tenants have been getting into verbal altercations in the hallway outside their neighboring units.  I’m afraid this could lead to a physical altercation.  If one of the tenants harms another tenant or someone else, can I be held liable since I know they haven’t been getting along?

You might be liable for harm caused by one tenant to another tenant or person on the property if it was foreseeable that one tenant would harm another.  There are different factors for the court to consider in this situation. If the tenant has caused harm to other tenants before, this pattern of behavior, may lead a court to rule that it is foreseeable that this tenant may repeat that behavior and harm another tenant, thus subjecting you to liability.  Anytime your tenants feel their safety is at issue you should encourage them to call the police.  You can also consult with an attorney to consider if there are grounds to evict the disruptive tenant if you feel that is the only way to remedy any potential harm he could cause.

Q. One of my tenants has a pit bull, I did authorize that she could have a dog but the dog is over the 25 pound weight limit specified in the lease. I am worried that because the dog is an aggressive breed that if it gets loose it could bite or harm one of the tenants.  If that were to occur, could I be held liable since I know about the pit bull?

If you know that a tenant has a dog that is vicious and you do nothing to remedy the issue, you could be held liable if the dog harms someone.  If you have a rental agreement that states that the tenant cannot have dogs over a certain weight, you can serve the tenant a notice to enforce that provision of your rental agreement.  If not, you should take any necessary steps you can to have the dog removed or ensure that it cannot harm other people.  Remember, it is best to do what you can and what is reasonable to prevent any known danger to others at your rental unit.

Attorney Franco Simone, of the Landlords Legal Center and has been doing evictions for 20 years.  He is also an adjunct law professor at the University of San Diego.  Mr. Simone’s office is open Monday- Friday from 9:00 AM to 5:00 PM .-  Tel: 619-235-6180, website: or email [email protected]