April 1, 2004
Every year the American Trial Lawyers Association conducts a training seminar that teaches lawyers how to sue and win against landlords and property managers. The seminar teaches lawyers step-by-step how to make the landlord appear liable.
Mostly they deal with the victims of crime in rental properties. But the landlords of accident victims are also fair game. As they prepare their suit, these lawyers comb a property to look for any instance where a landlord could conceivably be considered “negligent.”
For example, suppose one of your tenants is raped and robbed. Upon inspection it looks as if the window was left open, since there is no sign of forced entry. It doesn’t look that way to the trial attorney, though, oh, no. It looks to him as if the lock on the window was defective. And in the multi-million dollar lawsuit against the property owner and manager, he claims that he can prove it.
The landlord knows full well the lock would have worked properly, had it actually been locked. But how would you prove such a thing. Remember, in a civil case the prevailing party is the one with the “preponderance of evidence,” not the one who proves his or her case “beyond a reasonable doubt” as in a criminal case.
So the plaintiff’s attorney drags out a heap of evidence that shows the lock was broken or defective, maybe even designed that way, and the landlord knew or should have known that it was.
What can landlords do? Says Chris McGoey, author of the book Security: Adequate or Not, “The best time to test and document the condition of door and window locks and latches is during the unit walk-through with the incoming and outgoing residents. The leasing consultant and the new resident should test each lock and latch and document that the devices work properly and are in good condition. It’s not enough to generally state that all locks and latches are ‘okay.’ A better plan is to list the location and condition of each device. For example, the condition of the sliding glass door and the bedroom window latches separately.”
Even if you did not already do it for each of your properties at move-in, you can still go back and do an inspection, not just of doors and windows and their locks, but of other things around the property that could result in trips and falls. Document everything, because documentation is what will save your bank account in case of a lawsuit.
Every repair you make and every screw you screw in to make the property more secure needs to be documented. Ask your attorney or go to your local apartment, landlord or rental owners association to get an idea of exactly what you need to do to prove that you are taking not just adequate, but diligent care of your properties. Also check out Chris McGoey’s website www.crimedoctor.com.
In most states in order for a plaintiff to win a negligence suit, he or she has to prove that the “defect” that allowed the crime to occur or resulted in the accident was caused by the negligence of the property owner or his agent. On the other hand, if you can show that you did a good job maintaining your property, the injured tenant or guest will not prevail. In fact the suit may never get to court if the plaintiff’s attorney is presented with a stack of documentation proving that you did your job properly.
Just remember, never, ever claim to anyone that a property is safe or secure. That only invites litigation if any crime or accident occurs on your property. Do the job you need to do and note and date everything, even taking pictures if it is appropriate.
No landlord is safe as long as lawyers attend seminars to find out how to collect against us. Guard your investment carefully by diligent and prompt maintenance, especially of safety and security items.