This article was posted on Tuesday, Oct 01, 2013

I believe that one of my tenant’s children broke a staircase railing at my apartment building.  Another tenant complained that the railing is dangerous and if it is not repaired it could lead to someone falling on the staircase.  I asked the tenant whose son broke the railing to repair it two months ago, but he refuses to do so.  If someone falls because of the railing and is injured, could I be held liable for their injuries even though I’ve asked the tenant to repair the railing and he refuses?

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.  It is in your best interests to have the railing fixed as soon as possible.  If someone is injured because of the defective railing and you knew it was in need of repair, a court could find you liable for part or all of that person’s injuries.  It makes more sense to just spend the money to repair the railing then seek reimbursement from your tenant.

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.  In this situation, as long as there is no way you could have known that the railing was defective or that it would cause someone injury, you will probably not be held liable for someone’s injuries.  The key is to take care of any potential issues you know about, or should know about, that could cause someone injury.  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.

I have a tenant who smokes cigarettes every day in the pool area of my building.  Another tenant lives next to the pool area and has complained that the secondhand smoke is making her child sick because it blows from the pool area into her child’s room.  Can I be liable if the child gets sick?  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 such as the pool area.  Your lease or rental agreement should have a provision that designates the areas where the tenant cannot smoke on the premises.  You can then serve the tenant with a notice to enforce this provision if he smokes by the pool (and his lease states that smoking by the pool 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.

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 highly foreseeable that one tenant would harm another.  There are different factors for the court to consider in this situation. If the tenant that causes the harm has done so before against other tenants, this could make it foreseeable that he would harm another tenant again.  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 harmful tenant if you feel that is the only way to remedy any potential harm he could cause.

One of my tenants has a pit bull. I did not authorize the dog to be on the premises and other tenants are afraid that the dog may harm their children if he gets loose.  If that were to occur, could I be held liable since I know about the pit bull, even though I do not want the pit bull there?

If you know a tenant has any dog that is known to be 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 without your approval, 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 8:00 AM to 4:00 PM.  Walk-in’s welcome from 1:00 to 4:00 PM only – no appointment necessary.  Tel: 619-235-6180, website: or email [email protected].



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