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

DIRT recently ran a series of pieces on the duty of a landlord to protect a tenant from the behavior of other tenants. Here two recent cases discussing aspects of the problem. The first finds that that landlord is not liable for failure to to enforce tenant rules for the benefit of other tenants. The second limits the ability of a landlord to control visitors to a tenant's premises, which, of course, would also limit the ability of a landlord to protect other tenants from abusive behavior by such visitors.

LANDLORD/TENANT; LANDLORD'S LIABILITY FOR INJURY TO INVITEES;

NON-ENFORCEMENT OF TENANT RULES: Landlord will not be liable for tort damages to social invitee of tenant on theory that a clause in a lease prohibiting pets created a duty of due care to the social invitee on the part of the landlord.

Amberwood v. Matthews, 694 A.2d 131 (Md.App. 1997), cert. granted, 699 A.2d 1169 (Md. Sept. 15, 1997).

Social invitee of tenant whose child was killed by pit bull maintained by tenant sued landlord under the theory that the landlord had a duty to remove the dog and prevent potential danger. The dog's owner was in jail, and the tenant who was keeping the dog for the owner, was aware of its vicioius tendencies. The landlord was aware of the dog, and one former employee of landlord testified that he had warned the landlord that tenant was keeping a "vicious pit bull."

The Maryland Court of Appeals here reversed a jury verdict of $6 million (after reduction by the trial court), holding that the "no pets" clause in the lease did not impose a duty on the landlord to remove the dog being kept by a tenant who owned the dog; the basis for the "no pet" clause in the lease was to protect property for the benefit of the landlord, not to protect invitees from potential harm.

Fundamentally, the court ruled that landlords are not responsible for dangerous conditions caused by the tenant on the tenant's own rented premises. It countered holdings in California to the effect that landlords did have a duty to protect invitees and other tenants from vicious animals maintained by a tenant. In one interesting California case, the court had reasoned that the landlord had a duty to terminate the month to month tenancy of another tenant because that tenant maintained a dangerous pet. Ucello v. Laudenslayer, 118 Cal. Rptr. 741 (Cal. App. 1975).

The court mitigated its ruling somewhat by pointing out that the tenant testified animal in question had always been muzzled in the past, except on the date of the accident. This made the lanldord's employee's testimony that it had warned of the presence of a vicious dog less compelling. Nevertheless, the overall holding would seem to exonerate the landlord even absent such evidence.

The court then turned to the tenant's further argument that even if a duty did not exist in the abstract, it existed when the landlord adopted tenant rules prohibiting pets and then failed to enforce them when it knew that a tenant was keeping a dog.

The court was quite clear in ruling that its holding was one based upon public policy dictated by all of the circumstances, and that it was not relying solely on question of foreseeability or even morality. It maintained that to impose a duty on a landlord for failure to enforce tenant rules for the benefit of other tenants would inhibit a landlord from establishing those rules, even when it properly should do so to protect its own interests.

Interestingly, however, the court distinguished an Alaska case where the tenant rules prohibited the maintenance of "vicioius dogs." There, the court suggested, it might find liability on the part of the landlord because the clause seemed designed specifically to protect tenants and other invitees.

Comment: A vicious animal in an apartment complex is a public nuisance. The landlord should have the power to abate such nuisance in its own interest as well as that of the other tenants. Its failure to do so in a reasonable manner should be actionable.

The editor would not find liability on these facts, and concurs that it would be appropriate to find no liability as a matter of law. There was an inadequate showing that the landlord had knowledge of an animal that present an immediate danger to safety. But where there is such danger known to the landlord, the landlord should have the power and duty to act. Tenants reasonably expect the landlord to control behavior of other tenants to that extent.

The court here inserted language that may accord with the editor's view. It indicated that it was disinclined to impose greater responsibility upon the landlord to police the residents of its complex than the city had. City ordinance did not prohibit the keeping of pitbulls, but did require them to be muzzled. (As indicated, there was no evidence that the landlord had reason to believe the animal was not always muzzled.) If a future landlord has reason to believe that a pet constitutes dog was a public nuisance by city standards, the opinion here may not absolve it of liability.

LANDLORD/TENANT; RESIDENTIAL; TENANT GUESTS: Landlord's letter forbidding tenant's unruly boyfriend from entering the premises constituted a breach of the tenant's rights under the implied covenant of quiet enjoyment.

Branish v. NHP Property Management, Inc.,694 A.2d 1106 (Pa. Super. 1997).

After boyfriend caused a disturbance and damages, landlord by letter directed that boyfriend no longer could enter the premises. The tenant responded that the boyfriend was not an invited guest at the time the damage occurred, and that prohibiting her from inviting him breached her rights to The court decided that the letter violated tenant's right to invite social guests to her apartment - a right guaranteed by Pennsylvania's residential landlord tenant statute. Such violation would also, by extension, be a violation of the covenant of quiet enjoyment.

Tenant pointed out further that, under the statute, a tenant would be liable for damage committed by social guests. The "majority opinion" pointed to this provision of the statute in responding to the landlord's argument that it was entitled to protect itself and its other tenants from the unruly boyfriend.

Comment 1: The "majority opinion" is hardly that, since the three judges each filed an opinion. There was a concurrence and a dissent. The concurrence argued that the statute imposing liability upon a tenant for the acts of the tenant's guests applied only when the guests caused the damage "with the consent of the tenant," and not when the guests simply were on the premises with the tenant's consent. Such a reading, of course, undercuts the premise that the landlord can rely upon the tenant's statutory liability for the guest's behavior. The concurrence argued, however, that landlords could provide such protection by language in the lease. Pennsylvania landlords, forced to endure the presence of invited thugs on their premises, would be wise to include such language.

Comment 2: Neither the majority nor the dissent addresses the problem of personal injury or insult, as opposed to property damage. Yet the analysis seems to be the same from the standpoint of their reading of the statute. The tenant has the right to bring in guests. If such guests have not earlier caused trouble when they were invited guests of this tenant, then the landlord has no right to exclude them, apparently regardless of what they might have done as trespassers or guests of other tenants in the past. Of course, this is a silly reading of the statute, but it may insulate the landlord from liability for harmful behavior of these guests. Further, the concurrence's reading of the statute regarding tenant liability insulates the tenant as well.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1-6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Stacy Walter at the ABA. (312) 988 5260 or stacywalter@staff.abanet.org

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