In This Issue

• Landlord Liability
  • Criminal Conduct of a Tenant
  • Criminal Conduct of a Third Party
  • Disposition of Tenant Property
• Tenant Evictions
  • Drug Activity
• Criminal Activity by a Family Member – Section 8

Landlord Liability

Criminal Conduct of a Tenant

Lawrence F.
Feheley

What is a landlord's liability for the conduct of tenants that injures other tenants? The Cuyahoga County Court of Appeals recently ruled on a case where one tenant's thirteen year old son sexually assaulted another tenant's child in the common area of the apartment complex. Doe v. Beach House Development Co., 136 Ohio App. 3d 573 (Cuy. Co. 2000). The court cited the following general proposition:

"[W]hile the landlord has some duty to provide secure common areas in an apartment complex, he is not an insurer of the premises against criminal activity. ... Thus, the duty on the landlord is only to take some reasonable precautions to provide reasonable security."

In this case, the landlord employed security guards to patrol the premises during the evening and night, as well as the daylight hours during the summer. The child who perpetrated the assault, whose nickname was "Boomer," had a history of antisocial behavior consisting of violent and aggressive acts toward other residents (such as dropping water balloons on adults, holding a knife on young girls, throwing rock-filled snowballs at windows and tenants). Boomer had also physically assaulted the victim in this case on at least five prior occasions. Complaints to the landlord went unheeded. After Boomer sexually assaulted the younger boy, the tenant brought suit against the landlord.

The court held that even though Boomer had a record of antisocial behavior, and even though it may have been foreseeable that Boomer would have further altercations with this boy, it was not reasonably foreseeable that he would escalate his activities to the level of a felony sexual assault. The court noted that Boomer had never engaged in sexually-related conduct in the past. The court seemed to conclude that criminal conduct is not predictable with any degree of certainty. For those reasons, the claim against the landlord was dismissed.

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Criminal Conduct of a Third Party

In Minnesota, a tenant was killed by an attacker who entered the building through a door that had a broken lock. The deceased's family sued the landlord for negligence. In this case, like in the Ohio case, the landlord argued that it should not be held liable for the criminal acts of third parties. The court agreed that the landlord-tenant relationship, standing alone, does not give rise to a special duty to protect. However, such a duty may arise where a "special relationship" exists that gives the tenant the right to expect protection. In this case, the court determined that such a special relationship existed because, upon signing the lease, the tenant relinquished exclusive control over the building's security and the areas outside his living unit. As a result, the landlord had a duty to exercise "reasonable care to prevent foreseeable criminal acts of third parties." In addition, the court observed that even if the landlord did not have a duty to place a lock on the door, once it did so it had a duty to maintain the security device. Funchess v. Cecil Newman Corp., 615 N.W.2d 397 (Minn. Ct. App. 2000).

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Disposition of Tenant Property

In a case in Colorado, the landlord disposed of a tenant's property when the tenant failed to pay the rent. The landlord entered the unit and put all of the tenant's belongings on the street, with a sign that said "Free Take." Among the belongings were the tenant's photographs, journals, and the family Bible. The tenant then sued for emotional distress, including the "sentimental value" of the belongings. The Court of Appeals ruled that although the belongings may have had little market value, they did have great sentimental and emotional value:

"[T]he loss of the sentimental and emotional value attached to a particular piece of lost or damaged property may result in emotional distress not accounted for by reference to its market value."

The court therefore ruled that, at least where the conduct is alleged to be intentional or reckless infliction of emotional distress, the sentimental and emotional value of the property may be considered in measuring damages. Chryar v. Wolf, 2000 Col. App. Lexis 1645 (Colo. Ct. App. 2000).

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Tenant Evictions

Drug Activity

Court rulings on the issue of eviction of tenants for drug-related activity continue to be varied and inconsistent. In a Michigan case, Ann Arbor Housing Commission v. Wells, 2000 WL 461559 (Mich. Ct. App. 2000), the housing commission sought to evict the tenant because a visiting relative, the tenant's brother, was caught selling crack cocaine in the unit. The tenant was evicted under the federal "one strike" rule. Opposing the eviction, the tenant argued that she should only be evicted if she had knowledge of the criminal activity. The court allowed the eviction on the basis of a clear congressional intent to evict a tenant, even if they were unaware of the drug activity.

Similarly, a New York court upheld the eviction of a PHA tenant because of the drug activity of a guest in her unit, even though she claimed that she had no knowledge of the conduct. In this instance, the PHA gave advance notice to the tenant that the unit was going to be inspected. The inspection uncovered marijuana. The court relied on the fact that the PHA lease demonstrated a "zero tolerance" policy concerning the possession of illegal drugs by a tenant or their guest.

Therefore, the court held that the issue of the tenant's knowledge was irrelevant. Willock v. Schenectady Municipal Housing Authority, 2000 WL 424590 (N.Y. App. Div. 2000). A related issue arose in Pennsylvania. In the case of Allegheny County Housing Authority v. Hibbler, 2000 WL 368903 (Pa. 2000), a tenant's minor son was arrested for drug related activity. The PHA lease allowed the Authority to evict any tenant whose household member engaged in criminal drug activity, and so the PHA served an eviction notice on the tenant and her five children. The court allowed the eviction of the offending child, but ruled that the tenant could remain in the unit. The basis of the court's ruling was that the PHA was obligated under the federal regulation to consider mitigating circumstances when considering eviction from public housing.

[Source: BNA Housing and Development Reporter, May 15, 2000 and May 1, 2000 Issues, Current Developments].

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Criminal Activity by a Family Member – Section 8

What about criminal activity that occurs off the PHA's property? In Powell v. Housing Authority of the City of Pittsburgh, 2000 WL 1224725 (Pa. 2000), the sons of a Section 8 tenant were convicted for theft of a car about a mile from their home. The PHA terminated the Section 8 assistance because of the criminal conduct. Although HUD regulations state that a PHA may terminate assistance of any member of the tenant's family who engages in criminal activity, the court ruled that the PHA must show that the activity occurred within the immediate vicinity of the housing unit, or that the activity threatens the health, safety, or right to peaceful enjoyment of the leased premises. By so ruling, the Court held that the HUD regulation which allowed termination without regard to the location of the conduct was not a permissible interpretation of the statute.

[Source: BNA Housing and Development Reporter, September 18, 2000 Issue, Current Developments].

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