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Additional Case: Harris V. Soley1
Facts: The tenants (probably students) moved into an apartment that had been condemned and,
contrary to the landlord’s promises, not fixed up. There were mice, roaches, terrible odors, roof leaks,
no heat, broken toilets and more. The landlord failed to repair and the tenants stopped paying rent.
The landlord made various threats; the tenants moved out; the landlord converted some of the tenants’
personal property and made more threats; and the tenants sued. The landlord was defaulted for failing
to respond to discovery orders.
The jury awarded each tenant $15,000 for emotional distress, plus a total of $1 million in punitive
damages.
Issue: Were the tenants entitled to such large damages.
Holding: Affirmed. The landlord’s various illegal acts were so outrageous as to justify a substantial
award for emotional distress, and a large punitive award.
Question: How can the landlord be defaulted when in fact he was in court, arguing the case?
Answer: The landlord answered the complaint but then failed to cooperate with discovery
Question: Name some or all of the rules of law that this landlord broke.
Answer:
Quiet enjoyment. The landlord interfered with the tenants’ quiet enjoyment by failing to
provide a livable apartment.
Constructive eviction. The apartment was in such terrible shape that a reasonable tenant would
Question: Other than that, was the landlord a pretty decent guy?
Additional Case: Boulevard Shoppes, A.B. v. Pro-1 Realty, Inc.2
Pro-1 was a realty agency that rented a store from Boulevard. Pro-1 moved out of the premises before
the lease expired and refused to pay several months’ rent. It claimed that Boulevard had committed a
constructive eviction. Pro-l’s claims, and the evidence at trial, were as follows:
Claim: The landlord refused to fix a leaking roof.
Evidence: The roof did leak, but the landlord repaired it when notified.
Claim: The landlord failed to hold a grand opening celebration for Pro-1.
1 2000 ME 150, 756 A.2d 499 Supreme Judicial Court of Maine, 2000
2 605 So.2d 1317, 1992 FIa. App. LEXIS 10620 (Fla. Dist. Ct. App. 1990)
Evidence: The lease provided that the parties would split the cost of a grand opening, and
the tenant refused to pay its half.
Claim: On various occasions, the landlord failed to clean up beer cans, spilled ice cream, and
dog excrement in front of the store’s door for several days.
Evidence: The claim is true.
Additional evidence: The lease contained an “acceleration clause,” meaning that if Pro-1
breached the lease, Boulevard could demand immediate payment of money owed for the
duration of the lease. It also provided that if a court found that the tenant had breached the
contract, the landlord would be entitled to attorney’s fees.
Question: Please rule on each of Pro-1’s claims.
Answer:
Constructive eviction claim: Boulevard wins. It did not constructively evict Pro-1. The
landlord fixed the leaking roof. It was not obligated to hold the grand celebration because the
Question: What is the moral of this case?
Additional Case: Henry v. Estate of Ethel Levy3
This case demonstrates how strictly most courts interpret state statutes requiring timely return of
security deposits. Patricia Henry rented an apartment from Ethel Levy and gave her a security deposit
of $450. Levy died, and at about that time Henry moved out, notifying Levy’s estate of her departure.
Under the New Jersey security deposit statute, the estate owed the $450 plus interest. The estate sent
Henry a check for $611.51, but the estate had, in good faith, miscalculated the interest: the sum
actually due was $753.28. Further, the estate mailed the check slightly beyond the 30-day period.
Henry sued the estate, demanding double her deposit, pursuant to the state law. The issue was whether
she was entitled to double the deposit ($450) or double the amount wrongfully withheld ($141.77, the
difference between what the estate owed and what it paid). The court held:
Legislative intent and public policy dictate that the defendant must be subject to a penalty for
failure to comply with [the statute.] This statute was designed to protect tenants from overreaching
landlords who seek to defraud tenants by diverting rent security deposits to their own use.
In the present case, although the landlord’s estate returned what it believed to be the proper amount
of the security deposit, the amount was, in fact, miscalculated. Moreover, the latter erroneous sum
was tendered by the defendant and was not returned within the permitted 30-day period.
Based upon the clear wording of the statute and its intent, it is obvious to this court that the penalty
must be imposed when there is a failure to return the deposit within the prescribed period and that
this penalty is double the amount of the initial deposit and not double the amount of the monies
wrongfully withheld. Accordingly, this court determines that the proper penalty is double the
amount of the initial deposit plus interest accrued thereon which would be $900.00 plus $303.28
accrued interest making a total sum of $1,203.28.
Judgment will be entered for $1,203.28 less the sum of $611.51 previously paid.
Comment: Note that Henry was originally entitled to $753.28 from her landlord, but ended up
receiving $1,203.28.
Question: What do you think of this award to the tenant given that the landlord died and her estate
was handling her affairs?
3 254 NJ. Super. 489, 603 A.2d 1000, 1991 N.J. Super. LEXIS 485 (N.J. Super. Ct. 1991)
Tenant’s Duties
Duty to Pay Rent
Rent is the compensation the tenant pays the landlord for use of the premises, and paying the rent is
the tenant’s foremost obligation.
Duty to Use Premises for Proper Purpose
A lease normally lists what a tenant may do in the premises and prohibits other activities. A tenant may
not use the premises for any illegal activity, such as gambling or selling drugs.
Duty Not to Damage Premises
A tenant is liable to the landlord for any significant damage he causes to the property. The tenant is not
liable for normal wear and tear.
Duty Not to Disturb Other Tenants
A landlord may evict a tenant who unreasonably disturbs others. The test is reasonableness.
Injuries
Tenant’s Liability
A tenant is generally liable for injuries occurring within the premises she is leasing, whether that is an
apartment, a store, or otherwise. Landlord’s Liability
Landlord’s Liability
Common Law Rules --Historically, the common law held a landlord responsible for injuries on the
premises only in a limited number of circumstances. In reading these common law rules, be aware that
many states have changed them, dramatically increasing the landlord’s liability.
Latent Defects. If the landlord knows of a dangerous condition on the property and realizes the
tenant will not notice it, the landlord is liable for any injuries. But notice that, under the common law,
if the landlord notifies the tenant of the latent defect, he is no longer liable.
Common Areas. The landlord is usually responsible for maintaining the common areas, and along
with this obligation may go liability for torts.
Negligent Repairs. Even in areas where the landlord has no duty to make repairs, if he volunteers to
do so and does the work badly, he is responsible for resulting harm.
Public Use. If the premises are to be used for a public purpose, such as a store or office, the landlord
is generally obligated to repair any dangerous defects, although the tenant is probably liable as well.
The purpose of this stricter rule is to ensure that the general public can safely visit commercial
establishments.
Modern Trend. In many states, a landlord must use reasonable care to maintain safe premises and is
liable for foreseeable harm.
Case: Lindsay P. v. Towne Properties Asset Management Co., Ltd.
2013-Ohio-4124
Court of Appeals of Ohio, 2013
Facts: Lindsay4 and her young daughter lived above Rhonda Schmidt, in an apartment complex
operated by Towne Properties (TP), where Courtney Haynes, Schmidt’s boyfriend often stayed,
though not on her lease. They often blared rap music and fought loudly, often waking Lindsay’s
child; Lindsey complained to TP. In retaliation, Haynes banged on Lindsay’s door with a fire
extinguisher and confronted her menacingly. The TP representatives told Lindsey to call the
4<FTN>The court refers to Lindsay by her first name alone to protect her privacy.</FTN>
police. After receiving an obscene Facebook message from Haynes, she reported the incident to
the TP managers and begged TP to let her out of her lease. TP refused, and offered instead to
move her to an available first-floor unit, which she accepted.
TP advised Schmidt that since Haynes was not on the lease, he would have to leave, so
Schmidt insisted on adding him to the lease. TP agreed and divulged that Lindsay was moving
to another unit.
A few days later, Haynes broke into Lindsay’s new apartment and raped her in her
daughter’s presence. He was ultimately sentenced to nine years in prison. Lindsay sued TP,
alleging that it was negligent. The trial court found that TP had no duty to protect its tenant
from the criminal acts of third parties and dismissed the case. Lindsay appealed.
Issue: Was the landlord liable for the tenant’s injuries?
Excerpts from Judge Piper’s Decision: Generally, landlords do not have a duty to protect their
tenants from the criminal acts of third parties. However, such a duty exists when the landlord
should have reasonably foreseen the criminal activity and failed to take reasonable precautions
to prevent such activity.
This court is cognizant that the criminal acts of third parties are very difficult to predict.
However, there are issues of fact regarding whether TP should have reasonably foreseen
Haynes' criminal activity. The record demonstrates that TP was aware of how Haynes was
acting toward Lindsay. The record also demonstrates that TP was aware of Haynes' dangerous
propensities, as it knew that Lindsay felt threatened by Haynes to the point that an employee
offered to sit with Lindsay even after business hours so that she would not be alone.
TP was also made aware of Haynes' Facebook communication with Lindsay and that he
propositioned her sexually. TP told Lindsay that it was "taking care of it,” and asked Lindsay to
contact police so that such police records would allow TP "the means we need to take action on
the matter." TP also told Lindsay that it would “keep an eye on” the relations between Haynes
and Lindsay.
In addition to not letting Lindsay break her lease, expressly informing Haynes that
Lindsay was moving, and then placing Lindsay in a first-floor apartment even though she
expressed concern for her safety, TP also began the process of adding Haynes to Schmidt's
lease. When various facts are put into context with one another, it creates a question of fact as
to whether TP took reasonable steps to protect Lindsay.
Summary judgment is not proper in this case. Accordingly, we remand to the trial court for
further proceedings.
Question: What is the general rule in Ohio regarding landlord liability to protect their tenants
from criminal acts of third parties?
Question: Why does this particular case not follow the general rule above?
Additional Case: You Be the Judge: McGuire v. K & G Management
Co.5
Facts: The McGuire family rented a second-story apartment from K & G Management, which
managed a residential complex on behalf of Avant Co. Robin McGuire notified K & G that a window
5 1998 Ohio App. LEXIS 4742 Ohio Court of Appeals, 1998
screen was loose in her son’s bedroom, and had fallen out once. Neighbors had also complained about
loose-fitting screens. Five days after Robin reported the loose screen, her son, 26-month-old Devin,
was playing in his bedroom with his eight-year-old cousin. Somehow, Devin fell or leaned into the
window screen, which gave way. Devin fell to the ground and was seriously hurt.
The McGuires filed suit against K & G and Avant, claiming negligent maintenance, management,
and repair. In Ohio (and most states), a landlord has a statutory duty to “make all repairs and do
whatever is reasonably necessary to put and keep the premises in a fit and habitable condition.” The
trial court granted summary judgment for both defendants, ruling that the defendants had no duty to
install screens strong enough to restrain a child. The McGuires appealed.
You Be the Judge: Are the McGuires entitled to a jury trial?
Holding: The court affirmed summary judgment for both defendants: The court said “case law, in this
state and other jurisdictions, has held the purpose of window screens is not child restraint but to
provide ventilation and to keep birds and insects out of the apartment. Appellees presented no
evidence that the screen in question did not serve the purpose for which it was installed. Based upon
this, we find appellees did keep the apartment ‘fit and habitable’ with regards to the window screen
since the purpose of window screens is not to prevent tenants from exiting through the windows.”
General Questions: If you agree with the tenant’s position, answer these questions:
A window screen is supposed to keep bugs out, not children in. Why should a landlord be
responsible for the child’s fall?
How is a landlord supposed to know how strong a screen must be? How heavy is a “toddler”?
What if a screen is strong enough to hold one child, but not two children leaning against it at
the same time?
Isn’t the danger of an open window as obvious as any risk can be?
If you agree with the landlord’s position, answer these questions:
A properly fitted window screen might well save lives. Why shouldn’t the law require a
landlord to maintain the screens in proper order?
The legal standard in a negligence case is “reasonable conduct,” and it is normally the jury that
decides whether the defendant behaved reasonably. Why shouldn’t the court permit a jury to
hear these cases?
In at least one case, a few months after one child fell from a window, a second child fell from
the same building. Wouldn’t a landlord at some point start to be responsible? What is that
point?
Additional Case: You Be the Judge: Matthews v. Amberwood Assoc.
Ltd Partnership, Inc.6
Facts: Shelly Morton leased an apartment owned by Amberwood and operated by Monocle
Management. The lease permitted the landlord to evict any tenant who broke the “House Rules,” one
of which prohibited pets. Morton kept her boyfriend’s pit bull, named Rampage (!), in her apartment.
When Morton was absent, Rampage would attempt to attack anyone who came near him. Numerous
maintenance workers had been unable to perform service work because Rampage barked and lunged at
them. The workers reported each of these incidents to Monocle.
Shanita Matthews and her 16-month-old son, Tevin, visited Morton and her child, something they
had done many times. As the adults worked on a puzzle in the dining room, the children played in the
living room. Morton briefly left the apartment, and suddenly Rampage attacked Tevin. The dog
grabbed the boy by the neck and shook him. Matthews was unable to free her son. She yelled for help
and called 911. Morton reentered the apartment, could not free the boy, grabbed a knife, and repeatedly
stabbed the animal, which finally released Tevin. An ambulance arrived, but an hour after Tevin
reached the hospital, he died from his injuries.
6 351 Md. 544, 719 A.2d 199, 1998 Md. LEXIS 807 Maryland Court of Appeals, 1998
Matthews sued Amberwood and Monocle. The jury awarded her $5,018,750 for the wrongful death
of her son. The defendants appealed.
You Be the Judge: Does a landlord owe a duty to a social guest of a tenant for an attack within the
tenant’s apartment?
Holding: Judgment for Matthews affirmed.
The landlord retained control with respect to the extremely dangerous condition in Morton’s
apartment, based on the “no pet” clause. The lease plainly stated that breach of the “no pets”
clause was a “default of the lease.” Such a default would enable the landlord to bring a breach
of lease action to terminate the tenancy. Even before bringing such an action, the landlord,
when it first received notice of the dangerous incidents involving Rampage, could have
informed Morton that harboring the pit bull was in violation of her lease, could have told her to
get rid of the aggressive animal, and could have threatened legal action if she failed to do so.
The foreseeability of harm was clear. The extreme dangerousness of this breed, as it has
evolved today, is well recognized. Indeed, courts have taken judicial notice that pit bull dogs
“bite to kill without signal,” are selectively bred to have very powerful jaws, high insensitivity
to pain, extreme aggressiveness, a natural tendency to refuse to terminate an attack, and a
greater propensity to bite humans than other breeds. The pit bull’s massive canine jaws can
crush a victim with up to two thousand (2,000) pounds of pressure per square inch–three times
that of a German shepherd or Doberman pinscher.
To reiterate, we do not suggest that a landlord is responsible for most negligent conditions in
leased apartments including conditions covered by provisions in a lease. Under the present
circumstances, however, where a landlord retained control over the matter of animals in the
tenant’s apartment, coupled with the knowledge of past vicious behavior by the animal, the
extremely dangerous nature of pit bull dogs, and the foreseeability of harm to persons and
property in the apartment complex, the jury was justified in finding that the landlord had a duty
to the plaintiffs and that the duty was breached.
General Questions:
Do pit bulls have an undeservedly bad reputation? Admirers of the breed say that, as with all
dogs, the animals become aggressive only when badly trained.
The court devotes considerable attention to the pit bull’s reputation. Is it relevant? Suppose
that a tenant keeps a Saint Bernard or golden retriever–that is, a member of a breed that is
normally very peaceable, but this particular pet is widely known to be vicious. Is the landlord
liable for any bites?
The court also discusses the landlord’s knowledge of this dog’s viciousness. Again, is that
relevant? Suppose that the landlord knew that a tenant was keeping a potentially dangerous
dog on the premises, in violation of the “no pet” clause. Would the landlord be liable for bites
regardless of his knowledge of the particular dog?
Suppose that one tenant reports to the landlord that another tenant is keeping dangerous snakes
in his unit. The landlord has seen no evidence of the snakes. What should the landlord do?
Multiple Choice Questions
1. Quick, Onyx, and Nash were deeded a piece of land as tenants in common. The deed provided
that Quick owned one-half the property and Onyx and Nash owned one-quarter each. If Nash
dies, the property will be owned as follows:
(a) Quick 1⁄2, Onyx 1⁄2.
(b) Quick 5⁄8, Onyx 3⁄8.
(c) Quick 1⁄3, Onyx 1⁄3, Nash’s heirs 1⁄3.
(d) Quick 1/2, Onyx 1/4, Nash’s heirs 1/4
2. Which of the following forms of tenancy will be created if a tenant stays in possession of leased
premises without the landlord’s consent, after the tenant’s one-year written lease expires?
(a) Tenancy at will
(b) Tenancy for years
(c) Tenancy from period to period
(d) Tenancy at sufferance
3. To be enforceable, a long-term residential real estate lease must:
(a) require the tenant to obtain liability insurance
(b) define the tenant’s duty to mitigate
(c) be in writing
(d) specify a due date for rent
(e) all of the above
4. A tenant renting an apartment under a three-year written lease that does not contain any specific
restrictions may be evicted for:
(a) counterfeiting money in the apartment
(b) keeping a dog in the apartment
(c) failing to maintain a liability insurance policy on the apartment
(d) making structural repairs to the apartment
5. A tenant’s personal property will become a fixture and belong to the landlord if its removal would:
(a) increase the value of the personal property
(b) cause a material change to the personal property
(c) result in substantial harm to the landlord’s property
(d) change the use of the landlord’s property back to its prior use
Case Questions
1. In 1944, W. E. Collins conveyed land to the Church of God of Prophecy. The deed said: “This deed
is made with the full understanding that should the property fail to be used for the Church of God,
it is to be null and void and property to revert to W. E. Collins or heirs.” In the late 1980s, the
church wished to move to another property and sought a judicial ruling that it had the right to sell
the land. The trial court ruled that the church owned a fee simple absolute and had the right to sell
the property. Comment.
Answer: The trial court was wrong. The church held a fee simple defeasible. The moment the
2. Nome 2000, a partnership, owned a large tract of wilderness land in Alaska. The Fagerstrom family
had used the property for camping and holidays since about 1944. In 1966, Charles and Peggy
Fagerstrom marked off an area for a cabin and brought material to build the cabin, but never did so.
In about 1970, they built a picnic area on the land, and in about 1974, they placed a camper trailer
on the land, where it remained until the lawsuit. In 1987, Nome 2000 sued to eject the Fagerstroms
from the land. The Fagerstroms had used the land only during the summer months. No one lived in
the area during the winter months, when it was virtually uninhabitable. Has the family adversely
possessed the land from Nome 2000?
Answer: The Fagerstroms win and take title to the land by adverse possession. Their use, and
their ancestors’ use, was open and notorious, and adverse to the claim of the true owner. The
3. You Be the Judge: WRITING PROBLEM Frank Deluca and his son David owned
the Sportsman’s Pub on Fountain Street in Providence, Rhode Island. The Delucas applied to the
city for a license to employ topless dancers in the pub. Did the city have the power to deny the
Delucas’ request? Argument for the Delucas: Our pub is perfectly legal. Further, no law in Rhode
Island prohibits topless dancing. We are morally and legally entitled to present this entertainment.
The city should not use some phony moralizing to deny customers what they want. Argument for
Providence: This section of Providence is zoned to prohibit topless dancing, just as it is zoned to
bar manufacturing. There are other parts of town where the Delucas can open one of their sleazy
clubs if they want to, but we are entitled to deny a permit in this area.
Answer: Yes, the city could use its zoning powers to deny the license. Earlier zoning ordinances
had allowed topless dancing in the section of the city where the pub was located, but the current
4. Kenmart Realty sued to evict Mr. and Ms. Alghalabio for nonpayment of rent and sought the unpaid
monies, totaling several thousand dollars. In defense, the Alghalabios claimed that their apartment
was infested with rats. They testified that there were numerous rat holes in the walls of the living
room, bedroom, and kitchen, that there were rat droppings all over the apartment, and that on one
occasion they saw their toddler holding a live rat. They testified that the landlord had refused
numerous requests to exterminate. Please rule on the landlord’s suit.
Answer: The Alghalabio’s defense was breach of the implied warranty of habitability. The
landlord failed to maintain the premises in a livable condition, and the tenants are therefore entitled
to an abatement of rent. The amount of abatement depends upon the severity of the problems. In
5. Lisa Preece rented an apartment from Turman Realty, paying a $300 security deposit. Georgia law
states: “Any landlord who fails to return any part of a security deposit which is required to be
returned to a tenant pursuant to this article shall be liable to the tenant in the amount of three times
the sum improperly withheld plus reasonable attorney’s fees.” When Preece moved out, Turman did
not return her security deposit, and she sued for triple damages plus attorney’s fees, totaling
$1,800. Turman offered evidence that its failure to return the deposit was inadvertent and that it had
procedures reasonably designed to avoid such errors. Is Preece entitled to triple damages?
Attorney’s fees?
Answer: The court held the defendant liable for $900 (treble damages) and an additional $900 in
attorney’s fees. The rationale for treble damages is that, historically, landlords often willfully
refuse to refund security deposits, knowing that most tenants would not bother to sue. That was
Discussion Questions
1. The Estates is a suburb outside of Los Angeles. Local zoning ordinances require that lots be “at
least one acre in size”. Al owns a one acre lot in The Estates which has never been developed. He
needs cash and wants to sell the property.
Al finds a potential buyer, who offers him $100,000 for the acre. But, he also finds a pair of
interested buyers who each offer him $75,000 for half of his acre. Al is furious that he cannot
divide his acre and sell it to two buyers. “I need that extra $50,000,” he rants. “It’s my land, and I
should be able to do what I want with it!”
Do you sympathize with Al, or do you think the zoning restriction is reasonable?
2. Donny Delt and Sammy Sigma are students and roommates. They lease a house in a neighborhood
near campus. Few students live on the block.
The students do not have large parties, but they often have friends over at night. The friends
sometimes play high-volume music in their cars, and sometimes speak loudly when going to and
from their cars. Also ,departing late night guests often leave beer cans and fast food wrappers in
the street.
Neighbors complain about being awakened in the wee hours of the morning. They are considering
filing a nuisance lawsuit against Donny and Sammy. Would such an action be reasonable? Do you
think Donny and Sammy are creating a nuisance? If so, why? If not, where is the line- what
amount of late night noise does amount to a nuisance?
3. ETHICS During the Great Recession, home foreclosures hit an all-time high. In many instances,
banks ended up as landlords and property managers, a job for which they were ill-prepared. As a
result, many homes were abandoned for long periods. Some people who knew a little bit about
adverse possession decided to take advantage of this ancient common law doctrine: They
shamelessly occupied vacant homes, claiming them as their own, changing locks, and purchasing
electricity. The new residents argued that they were not hurting anyone and acting within the
bounds of the law. In response, some states lengthened the time period necessary for adverse
possession. Examine the squatters’ ethics. What do you think of their behavior? Does your opinion
vary if the squatters were the home’s former owners? What if the banks were ignoring the home?
What would Kant and Mill say?
4. In 1966, Arketex Ceramic Corp. sold land in rural Indiana to Malcolm Aukerman. The deed
described the southern boundary as the section line between sections 11 and 14 of the land. Further
south than this section line stood a dilapidated fence running east to west. Aukerman and Arketex
both believed that this fence was the actual southern boundary of his new land, though in fact it lay
on Arketex’s property.
Aukerman installed a new electrified fence, cleared the land on “his” side of the new fence, and
began to graze cattle there. In 1974, Harold Clark bought the land that bordered Aukerman’s fence,
assuming that the fence was the correct boundary. In 1989, Clark had his land surveyed and
discovered that the true property line lay north of the electric fence. Aukerman filed suit, seeking a
court order that he had acquired the disputed land by adverse possession. The statutory period in
Indiana is 20 years. Who wins? Who ought to win? Does adverse possession make sense as a social
policy? Why or why not?
Answer: Aukerman wins. He considered himself to be the owner, as had Arketex for eight years
and Clark for 15 years. Aukerman maintained the land, used it for its normal purposes, and kept
everyone else off. His use was open, notorious, visible, and exclusive for more than 20 years. All
5. Imagine that you sign a lease, and that you are to move into your new apartment on August 15.
When you arrive, the previous tenant has not moved out. In fact, he has no intention of moving
out. Compare the English and the American rules. Should the landlord be in charge of getting rid
of the old tenant, or should you have the obligation to evict him?
6. When landlords wrongfully withhold security deposits, they can often be sued for three times the
amount of the security deposit. Is this reasonable? Should a landlord have to pay $3000 for a
$1000 debt? What if you fail to pay a rent on time? Should you have to pay three times the
amount of your normal rent? If your answers to these two questions are different, why is that?
