By Amanda Podlucky
The majority of claims asserted against owners and managers of multifamily housing properties involve allegations of injury in common areas. Maintenance staff are often instructed to focus on preserving walkways, amenities and other common areas of the property where residents may encounter a hazard. Not only do communities want to keep their residents and guests safe, they also want to ensure that reasonable maintenance is done also helps avoid costly claims. In recent years, however, there has been an increase in claims from injuries occurring inside individually leased units. From broken fixture hazards to flooding damage, claimants and their attorneys are quick to bring claims arising from incidents that occurred behind closed doors.
These claims often require an entirely separate analysis and raise new questions when evaluating liability. In most jurisdictions, laws do not require that landowners and managers guarantee the safety of guests and residents, but they do require that common areas be reasonably cleaned and maintained to protect against foreseeable injuries. The analysis is relatively straightforward when considering a broken staircase or water pooled in a common hallway, giving rise to foreseeable slip- or trip-based incidents. But, what happens when a resident seeks damages for a slip and fall in her own kitchen? These claims can be difficult to evaluate when the duties owed by the property must be looked at in a different light. The analysis no longer centers solely around reasonable maintenance/inspection procedures or the occurrence of prior similar incidents, but on whether the property owner had a duty to enter the unit to inspect a condition or make a repair.
When To Enter A Leased Unit
Most leases allow landlords and staff to enter a leased unit for inspection or repair upon reasonable notice, with exceptions in the event of emergencies. The liability questions arise, however, in the gap that exists between the duties owed by a landlord at the time a leased premise is surrendered to the tenant and those instances where a property owner must enter the unit because of an apparent emergency. There’s no question that most jurisdictions require landlords and property managers to conduct a reasonable inspection and make necessary repairs before transferring possession of a leased unit. Most laws also require landlords to notify tenants about any known or latent defects present at the time of the transfer. The grey area involves the duties to reasonably inspect and repair the premises during the tenancy.
The Landlord’s Obligation, Liability
A landlord’s continuing duty to inspect and repair is generally triggered once the tenant notifies the property of an issue and requests a repair. The same general negligence principles regarding actual versus constructive notice would apply to an injury situation where a claimant alleges the property was aware of, or should have been aware of, the dangerous condition inside the leased unit. When the alleged condition was never reported to the property, the analysis is more straightforward.
On the other hand, when the alleged danger was reported or when a claimant alleged the hazard existed for a significant period, the analysis becomes more complex. If, for example, a resident returned home to find water pooling on a tiled floor that was not present when he left the unit, and no reports were made by residents of any adjacent unit regarding the property of any condition that may cause a leak, the landlord would not likely be liable to the resident if the landlord had no reasonable means of identifying the flooding. This changes if a tenant in the adjacent unit reports a leak: That report could trigger liability for the property if it knew or should have known that a leak in the adjacent apartment was reasonably likely.
What Should Owners, Landlords Do To Avoid Future Issues?
What does this mean for owners and managers of multifamily properties? Because the duty to inspect and repair a leased unit generally arises from a tenant complaint or service request, it is important to maintain service request records, including those made after hours or on emergency lines. If requests are reported online, copies should be maintained in residents’ files for up to four years, even if a tenant leaves the property or is evicted. Because no one can predict an injury or claim, maintaining sufficient records for all residents is imperative.
Further, a dangerous condition in one unit may have resulted from a problem elsewhere on the property. In the event of a flood from a defective water heater in an adjacent unit, records for both units will become vital in defending the case. Now that many property owners and managers are turning to online service request forms, maintaining records for a sufficient length of time is easier. If maintenance employees have after-hours cell phones, it is imperative these employees are reporting calls in detail and keeping records of any service calls not made in writing.
Should a resident make an injury claim, it is necessary for the property to have a record if a service call was made concerning the condition; if the property fails to disclose the call, or has no record of it, but the resident can prove otherwise, it could turn an otherwise defensible claim into an unfavorable one.
As with any claim, a timely and thorough inspection of the alleged danger should be conducted as soon as an injury is reported, along with obtaining a detailed statement of what caused the injury. If possible, photograph the affected area and gather any service requests for that unit and neighboring units, including those above or below the affected one. Completing a prompt investigation and gathering relevant materials as soon as a potential claim arises will save your insurance carrier and defense counsel time and money down the road if the claim is pursued.
Amanda Podlucky is a shareholder in the Orlando office of Marshall Dennehey Warner Coleman & Goggin, a civil defense litigation law firm. A member of the Casualty Department, she defends clients in matters involving personal injury, negligent security and related general liability claims.