by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

LANDLORD AND TENANT: Landlord can maintain a tort action for trespass against a tenant for damaging a common area. Colonial Properties, Inc. v. Vogue Cleaners, Inc., 86 F.3d 210 (11th Cir. 1996).

A landlord, to avoid liability for injury to tenants or a guest occurring in a common area, has the duty to maintain such common area in a reasonably safe condition. The court reasoned that if a landlord retained sufficient possession over common areas to be held liable for injuries occurring therein, the landlord also retained sufficient possession over common areas to bring an action for trespass against a tenant for damage to a common area.

Comment: This little case is unexceptional except to the extent that it provides the landlord with a tort remedy for something that might ordinarily be thought to be actionable as a breach of the lease. Tort claims often have different rules as to statutes of limitations, availability of punitive damages, and, perhaps most important, applicability of the defendant's insurance. See, e.g. General Accident Ins. v. West American Ins. Co., 49 Cal. Rptr. 603 (Cal. App. 1996) (discussing application of commercial general liability policy that protects insured against liability for its own "wrongful entry or eviction."). An alternative tort theory might be waste, which ought to apply in the landlord/tenant context, but there probably are fewer precedents for waste damages, and insurance coverage may be more problematic.

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