MCLE Article and Self-Assessment Test
California courts have failed to provide a clear definition of the liability of landlords for the tortious or illegal acts of their tenants
By Rena E. Kreitenberg and Dennis P. Riley
Rena E. Kreitenberg, of the Law Offices of Rena E. Kreitenberg in Beverly Hills, and Dennis P. Riley, of the Law Offices of Dennis P. Riley in Pasadena, are sole practitioners focusing on real estate and business transactional law and litigation.
Landlords who elect to honor the privacy rights of their tenants may, under certain circumstances, face civil liability far greater than they have ever imagined-or worse, forfeiture of their property-if the tenants have been engaging in criminal conduct. When should landlords pay less attention to the constitutional rights of tenants and more to covering their own flanks? In California, the answer is far from clear.
California case law has established that a landlord may be held responsible for the tortious or illegal acts of a tenant if the landlord knows or should have known that the tenant could pose a danger to third parties.1 But absent clear precedents, findings of landlord liability have been based upon a case-by-case factual inquiry into the nature and extent of the landlord's knowledge of the tenant's specific activity. This is not good news for the landlord, because California case law has not established with any certainty what the landlord must actually know before liability will be imposed. Without concrete guidelines, landlords are left to speculate about the proper approach to take when faced with tenant misconduct.
The legal underpinnings of landlord liability for their tenants' actions stems from the doctrine set forth in Rowland v. Christian,2 a 1968 California Supreme Court decision that provides a general rule of law regarding the liability of a landowner for the landowner's own conduct. Focusing on the foreseeability of the injury sustained on the landowner's property in determining whether the landowner had a duty to persons entering the property, the Rowland court departed from previously established statutory law by creating a balancing test that consists of several factors:
- Foreseeability of the harm.
- The degree of certainty that the plaintiff suffered injury.
- The nexus between the defendant's conduct and the injury suffered.
- The moral blame attached to the defendant's conduct.
- The extent that public policy comes in to play to prevent future harm.
- The burden on the defendant as a result of imposing liability.
- The availability and cost of insurance to cover the risk.3
The Aggressive Dog Analogy
More recently, when determining the liability of landlords for the acts of their tenants, courts have analogized from cases involving vicious dogs and a landlord's knowledge of a dog's propensities for aggression.4 In Rosales v. Stewart,5 a 1980 case, the court held that a landlord's knowledge of the dangerous propensities of a tenant prior to the renewing of a lease was sufficient to hold a landlord liable for the gunshot death of a neighbor by the tenant.6 Under the common law prior to Rowland, there was no duty to control the conduct of another or to warn others, absent a special relationship.7 The court in Rosales ruled that the landlord-tenant relationship was just such a special relationship, because the landlord had a unique right to prevent the presence of a dangerous condition created by the tenant.8 The court equated the situation to the presence of a vicious dog on the premises, a condition that had been construed as a dangerous condition on the property.9
In Rosales, the parents of a minor child brought a wrongful death action against the landlord of the house next door. The tenant who lived in the landlord's house fired the bullet that struck and killed the child, and the parents alleged that the landlord had prior knowledge that the tenant used the backyard of the house to fire his weapon.10 The court of appeal held that the dismissal with prejudice of the complaint was improper because the parents could successfully plead that the landlord had both "an opportunity and the ability to prevent" the tenant's conduct by terminating the tenant's right to possession of the landlord's property.11 The court noted that there was no allegation in the complaint that the landlord had any knowledge of the dangerous propensity prior to the renewal of the tenancy or that the rental agreement could have been terminated by the landlord prior to the injury. But the plaintiffs could amend their complaint to establish both the opportunity and ability of the landlord to prevent the injury.12
In Portillo v. Aiassa,13 a 1994 case, a liquor store customer who had been attacked by the store's guard dog won a judgment against the landlord who leased the commercial property to the store. In affirming the judgment, the appellate court acknowledged that a duty existed, and thus a landlord could be held responsible for injuries inflicted by a guard dog that was inherently dangerous. The court focused on the knowledge of the landlord-and, more specifically, his implied knowledge-as well as the landlord's duty to inspect.14 The landlord had not conducted an inspection of the premises prior to renewing the lease; had he done so, the landlord would have learned of the threat posed by the dog's dangerous behavior.15
The common thread that runs through these cases is the focus of the courts on 1) whether the nature of the activity by the tenant is inherently violent or creates a dangerous condition at the property, and 2) the level of knowledge a landlord has of the specific activity and its potential for danger. This focus is simply another way of looking at the foreseeability of harm and the other factors set forth in the Rowland balancing test that courts rely on in determining whether the owner of land owes a duty to someone injured on the land. Commentators also underscore this concept by noting that a landlord with knowledge of the possibility of criminal or illegal activity at the landlord's leased premises could be held liable if the probable becomes actual.16
Moreover, the Rosales court couched its analysis in public policy. In particular, the court ruled that if a landlord has knowledge of the acts of the tenant and the possibility of a danger existed, together with the "opportunity and the ability to eliminate the dangerous condition," a landlord would owe a duty of care to prevent the presence of the threat.17 This duty would necessarily extend to third persons, so the landlord theoretically would have a duty to "do all that [the landlord] legally can do to get rid of a dangerous condition on the leased premises, even if it means getting rid of the tenant."18 The court reasoned that such a duty must be imposed because the landlord is the only one with control over the property and the power to terminate the tenancy.19
The "Should Have Known" Standard
What should the landlord know and when should the landlord have known about it? Determining whether to impose liability upon a landlord for the acts and injuries perpetrated by a tenant requires an analysis of how much information the landlord possessed about the tenant's conduct. In establishing the extent of the landlord's knowledge, it is unclear whether the landlord has the obligation to go beyond a simple inspection of the premises to an investigation of a tenant's background or personal activities at the site once the landlord is in possession of threshold information that raises the possibility of dangerous activity by the tenant. Moreover, if the landlord decides to undertake an investigation, the extent to which the investigation must reach is equally uncertain. The courts have not established bright-line requirements for whether the landlord must call the local police or hire an investigator. Also, these issues are further cluttered by the contravening rights of privacy of the tenants as well as their common law right to quiet enjoyment of their rental property.
Another problem for landlords is the risk that arises from their avoidance of knowledge as a result of a failure to investigate. A landowner generally is not liable for injuries to a tenant or a third party from a dangerous condition that arises after the tenant has taken possession, except when the landowner retains or acquires a certain degree of control over the condition20 or obtains information regarding the existence of a dangerous condition. In determining liability, landlords face the question of not only what kind of knowledge they have but also what they should have known.
For a partial answer, a comparison of Portillo and Uccello v. Laudenslayer21 leaves little doubt that the absence of a legal duty to inspect appears to trigger a lower standard for the level of knowledge necessary to find liability on the part of a landlord. Indeed, the courts seem to be inclined to impose the "should have known" standard in those cases in which a duty to inspect existed. The landlord in Portillo did not have actual knowledge of the dangerous propensities of the guard dog, but the jury found that given the facts of the case, the landlord should have known, and liability was imposed. The court in Uccello, on the other hand, clearly stated that a landlord of residential property does not have a legal duty to inspect, and thus such a duty arises only when knowledge is actually acquired. Given the lack of a duty to inspect, the court in Uccello held the landlord to the lower standard of actual knowledge.22
As a further complication to the uncertainty of the law in this area, some courts have refused to find landlord liability for the acts of tenants even if the landlord knew about the dangerous condition. In 1995, the court in Medina v. Hillshore Partners23 refused to impose a duty upon a landlord for the murder of an innocent third party half a block from the landlord's rental property by the members of a gang-even though the members of the gang were tenants who had been congregating in front of the landlord's apartment building at the time of, and just prior to, the murder.24 Even though it was clear the landlord had specific knowledge of the problem, the court reasoned that the landlord had no duty to police the area beyond the property.25 The dissent, however, attacked the majority's analysis, particularly its determination that the landlord's tenant was an unrelated party. The dissent deemed this finding to be inconsistent with the facts as pled. The shooter and his fellow gang members utilized the property to threaten and harm people on and off the premises with the landlord's knowledge-and the landlord had the opportunity and the ability to abate the problem.26
The prerequisite to the imposition of liability once a landlord's knowledge has been established is the landlord's right and ability to cure the condition.27 Simply put, the landlord must have grounds to evict the tenants under the Code of Civil Procedure.28 Echoing the vicious dog cases, the most likely ground upon which to base an eviction would be the creation of a nuisance. If the tenant is engaging in criminal conduct at the property, the landlord could seek an eviction based on the tenant's violation of a covenant of a written lease agreement.29 If the breach or nuisance is arguably incurable, the landlord may immediately initiate unlawful detainer proceedings against the tenant after expiration of a three-day notice to quit.30 Thus, under current case law in California, if the landlord has specific knowledge that would lead a reasonable person under similar circumstances to believe criminal activity or a dangerous condition is ongoing at the property, and if the landlord has a legal right to proceed, the landlord must act-or face potential liability.31
Level of Knowledge
The level of knowledge that a landlord must possess to be found liable is debatable. For example, it is not clear whether the mere knowledge that a tenant has a criminal arrest record would be enough to put a landlord on notice of a dangerous propensity sufficient to place liability upon the landlord for the acts of that tenant. But if the tenant's record contained recent arrests for violent felonies that were still pending in the court system, these additional elements might be enough to place liability on the landlord, assuming the landlord has legal grounds to evict the tenant and thus remove the potentially dangerous condition.
A further layer of complexity emerges if personal information about the tenant reveals conduct and activities that are not necessarily taking place on the landlord's property. What is the impact of these facts on the risk of landlord liability? After all, grounds for eviction, including not only the failure to pay rent but also the creation of a nuisance or the violation of any law or ordinance at the premises, are based solely upon conditions existing at the property.32 Moreover, some cases have distinguished between conduct at the property that a landlord could conceivably control and conduct off the property over which the landlord has no control, such as the gang-related shooting at issue in Medina.33
Similarly, the courts have recognized that even when a landlord has knowledge of a dangerous condition, the landlord's ability to remove the condition might be hampered by the rights of the tenant under a lease.34 The tenant also has federal and state constitutional privacy rights, which may limit a landlord's right to conduct a further investigation into a tenant's background as well as the landlord's ability to evict. Further, courts have held that a tenant's character alone does not create a dangerous condition or nuisance to support an unlawful detainer in certain instances.35
Whether the prior behavior of a tenant off the premises is sufficient to put a landlord on notice of a future dangerous propensity on the premises "is an issue for the trier of fact,"36 according to the court in Davis v. Gomez,37 a 1989 case that brought a renewed focus to the balancing of interests set forth in the Rowland test.38 The tenant in Davis had a history of psychiatric problems and had been arrested and convicted for shooting her husband prior to her tenancy. The appellate court, in affirming the trial court's granting of summary judgment in favor of the landlord, stated that "the court could not assume that the landlord could have discovered from police records that the tenant had shot her husband." But if the landlord had been demonstrably aware of the earlier incident, "[o]stensibly, it might then have become reasonably foreseeable that [the tenant] was inclined toward actual violence."39
Davis did not address the issue of the legal justification for eviction, but the court did note that the plaintiff failed to establish what action the landlord could have taken to cure the condition even if the plaintiff had possessed knowledge of the "dangerous tendencies" of the tenant.40 Once again it is unclear whether a landlord with the type of knowledge referenced in Davis would be held liable for any violent acts of the tenant if the landlord did not have any legal grounds to evict the tenant.
With these types of rulings in California, it is impossible to say when a landlord can safely ignore any potential knowledge of violence or criminal conduct on the part of a tenant. A little bit of knowledge not only may be dangerous-even when that knowledge is gained accidentally41-but it may be the ultimate double-edged sword. Landlords can be held liable because they knew about the tenant's dangerous propensities and did nothing, or because they failed to investigate the tenant in order to obtain such knowledge.42 Moreover, it appears from the case law that a landlord may have a duty to search the criminal backgrounds of potential tenants, especially when a duty to inspect may exist.43 Without a clear standard for landlords to apply, they may have no choice but to conduct criminal background checks on all tenants so that eviction proceedings can be initiated if the information so warrants or the landlords can refuse to rent in the first instance based upon the background knowledge.
The status of the property itself is at issue, because federal and state forfeiture laws could arguably apply to an unsuspecting landlord.44 Federal law specifically leaves open the possibility that a landlord could be forced to forfeit his or her property if a tenant is conducting illegal activity on the premises or intends to use the property for that purpose "in any manner."45 The extent of the landlord's knowledge that is sufficient to trigger a forfeiture is not clear. An exception to forfeiture exists if the landlord had no knowledge of, or did not consent to, the acts of the perpetrator-but of course the definition of "knowledge," not to mention its parameters, is murky at best under current California law. Therefore, a landlord could conceivably lose his or her property due to the criminal activity of a tenant if the landlord knew or had reason to know that the tenant was engaging in unlawful conduct.
Without better guidance from the courts than the comparison of tenants to vicious dogs, California landlords can take comfort in the knowledge that if there are no legitimate legal grounds to evict a potentially problematic tenant, most courts will have no choice but to shield the landlord from third-party liability due to injuries inflicted by the landlord's tenant. An opinion letter from the landlord's attorney may go a long way toward providing some extra insurance and peace of mind. But for landlords, the real mine field remains what it has always been: deciding what criteria should be used in reviewing a rental application submitted by a potential tenant.
1 Rosales v. Stewart, 113 Cal. App. 3d 130 (1980); Portillo v. Aiassa, 27 Cal. App. 4th 1128 (1994); Miller & Starr, Real Estate Law 2d, Landlord and Tenant, §§29:32, 29:34 (1989).
2 Rowland v. Christian, 69 Cal. 2d 108 (1968).
3 Id. at 112.
4 See Uccello v. Laudenslayer, 44 Cal. App. 3d 504 (1975); see also Portillo, 27 Cal. App. 4th 1128.
5 Rosales, 113 Cal. App. 3d 130.
7 Civ. Code §1714; see also Tarasoff v. Regents of Univ. of Calif., 17 Cal. 3d 425, 435 (1976).
8 Rosales, 113 Cal. App. 3d at 135.
9 Id. at 135 (citing Uccello v. Laudenslayer, 44 Cal. App. 3d 504 (1975)); see also Portillo v. Aiassa, 27 Cal. App. 4th 1128 (1994).
10 Rosales, 113 Cal. App. 3d at 132-33.
11 Id. at 135.
13 Portillo, 27 Cal. App. 4th 1128.
14 Courts have distinguished between commercial property that is open to the public (i.e., a liquor store) and commercial property that is not. The courts have imposed a duty on landlords of the former to inspect the premises at the beginning of the lease and when the premises are relet for the purpose of preventing harm to the public.
15 Portillo, 27 Cal. App. 4th at 1131, 1133.
16 Miller & Starr, Real Estate Law 2d, Landlord and Tenant, §§29:32, 29:34 (1989).
17 Rosales v. Stewart, 113 Cal. App. 3d 130, 135 (1980).
20 Uccello v. Laudenslayer, 44 Cal. App. 3d 504, 510 (1975).
22 Other cases have similarly held that the mere fact of dog ownership without the owner's specific knowledge of the dog's vicious nature is not enough to impose liability upon its owner. See Lundy v. California Realty, 170 Cal. App. 3d 813, 821 (1985).
23 Medina v. Hillshore Partners, 40 Cal. App. 4th 477 (1995).
24 Id. at 483.
25 Id. at 482.
26 See dissent, id. at 486, 487, 491 (Presiding Judge Stephen J. Jones, dissenting).
27 Leakes v. Shamoun, 187 Cal. App. 3d 774 (1986).
28 Code Civ. Proc. §§1161 et seq.
29 Most standard form residential lease agreements, such as the AOA Residential Lease Agreement, contain a provision that no unlawful activity shall be engaged in at the premises.
30 See, e.g., Code Civ. Proc. §1161(4) (the sale of a controlled substance at the premises or use of the premises to further that purpose is a noncurable default); see also Civ. Code §3479.
31 Accord, Civ. Code §1714(a) (the landlord is liable for "injury occasioned by another due to want of ordinary care or skill in the management of his property or person").
32 Code Civ. Proc. §1164(4).
33 Medina v. Hillshore Partners, 40 Cal. App. 4th 477, 482 (1995).
34 Leakes v. Shamoun, 187 Cal. App. 3d 774 (1986).
35 Davis v. Gomez, 207 Cal. App. 3d 1401 (1989).
36 Id. at 1405.
38 Rowland v. Christian, 69 Cal. 2d 108, 112 (1968).
39 Davis, 207 Cal. App. 3d at 1405.
40 Id. at 1406.
41 In Davis, id. at 1404, the trial court indicated that a landowner has no duty to check the references or background of a prospective tenant for any information other than for the landowner's own interest.
42 Indeed, the question remains whether a landlord in possession of information about a prospective tenant's potential for violence prior to leasing the premises is negligent for ultimately leasing the premises to that individual.
43 If a landlord does have a duty to investigate, does a new duty arise requiring the landlord to disclose the violent background of a tenant (for example, a convicted child molester) to other tenants of the property?
44 Among the California laws regarding forfeiture, Health & Safety Code §11470(g) is triggered by a conviction on the underlying offense-a prerequisite not found in federal law.
45 21 U.S.C.A. §881(a)(7).
|EARN CLE CREDIT|| ||By reading this article and answering the accompanying test questions, you can earn one CLE credit.|