Must An Apartment Building Lessor Evict An
Occupant Who Threatens Tenants?

In the mid 1990's, a nine year old girl, Bertha, lived with her mother and other relatives in an apartment on the second floor of a 3 story, 33 unit apartment building in Redwood City, California. At that time, a young man of adult age, Eric, was staying with his parents who lived in an apartment on the same floor as Bertha and her family.

According to a recent decision of the California Court of Appeal, Eric one day repeatedly stabbed Bertha with a large knife in the second floor hallway. Bertha’s family members "soon saw Eric’s father carrying Bertha, who was covered with deep cuts and blood."

Bertha sued, among others, those alleged to be the owners of the apartment building, asserting that the landlord owed Bertha a duty of reasonable care to protect her from this criminal assault which she contended was foreseeable.

Why did Bertha’s attorneys believe this violent act to be foreseeable? You be the judge!

The apartment manager acknowledged there were four prior complaints. The first two complaints were approximately four months before the attack. Bertha’s mother complained that Eric was "walking the halls day and night giving her ‘ugly’ looks, and that she was scared of him." The manager responded by telling her not to worry, that he was "just a nervous person, and that she would speak to his parents to find out when he would be leaving, as he was only visiting them."

Bertha’s mother complained a third time "after Eric, who she saw through the peephole, tried turning the door knob on the lock of the front door to her apartment." The apartment manager responded this time that she had spoken to Eric’s parents and had discovered that he was only there on vacation and would be leaving shortly. The apartment manager also advised Bertha’s mother that the owners of the apartment building had been advised of the complaints.

Bertha’s mother complained on the fourth occasion, "that she and her family were afraid of Eric, and asked why he had not left yet."

Evidence was also presented that Eric was not named as a lessee on the apartment lease, that the lease named Eric’s parents and sister as tenants, that guests were allowed to stay no more than three days without written consent, that it was the landlord’s policy to give tenants a notice to vacate when they violated the occupancy limits of a lease, and finally, that the landlord had in fact terminated the tenancy of prior tenants who exceeded the permissible occupancy limits.

What should a landlord’s do under these circumstances? Judicial decisions suggest that a landlord has a duty of reasonable care to protect tenants from foreseeable third party criminal assaults. As the Court stated, "The question of a landlord’s duty, therefore, is not whether a duty exists at all, but rather, what, given the circumstances, constitutes reasonable care?"

In this case involving Bertha and Eric, the court noted that the question of duty involves two primary considerations: "the foreseeability of the harm and the extent of burden on the landlord to protect from the harm." The court goes on to cite a Supreme Court decision which observes that

"where the burden of preventing future harm is great, a high degree of foreseeability may be required. On the other hand, in cases where . . . the harm can be prevented by simple means, a lesser degree of foreseeability may be required."

The court observed that "the duty to take the steps that they [the owners] had previously taken with other unauthorized guests or tenants in violation of the lease constituted a minimal burden."

The court thus concluded, in requiring the trial court to permit the matter to proceed to trial, as follows:

"We hold that the evidence of Eric’s strange behavior in the hallways late at night, his ‘ugly’ looks at a tenant, his attempt to enter a tenant’s apartment, and complaints from tenants that they were afraid of him and concerned for their safety would give a reasonable landlord in the same position sufficient information to foresee that something could happen to place another’s safety in jeopardy. Accordingly, a duty existed on the landlords’ part to exercise reasonable care in making an effort to remove Eric from the premises . . . ."

The moral of this story? An occasional "ugly" look may not amount to much, but when considered together with gazing through a peephole and attempting to gain entry by turning a doorknob, a landlord’s obligations extend beyond the mere depositing of rent checks!

[This column is intended to provide general information only  and
is  not intended to provide specific legal advice; if you have  a
specific  question  regarding the  law,  you  should  contact  an
attorney  of your choice.  Suggestions for topics to be discussed
in this column are welcome.]


Reprinted from New Era Magazine
Myles M. Mattenson © 2000-2002