Broken Locks Lead to Burglary; Is the Landlord Liable?

Robert S. Griswold | Steven R. Kellman | Ted Smith
24-December-2000 Sunday

This column on issues confronting renters and landlords is written by Counselor of Real Estate and Certified Property Manager Robert Griswold, host of Real Estate Today! with Robert Griswold (10 a.m. Saturdays on AM1130 - KSDO radio, or on the Internet at www.retodayradio.com), and by attorneys Steven R. Kellman, director of the Tenants' Legal Center, and Ted Smith, principal in a law firm representing landlords.

QUESTION: I rented a home in a nice area, but unfortunately three days after we moved in, the home was burglarized. All boxes with items of value (China, crystal, electronics) were stolen along with some small pieces of furniture.

We noted after we notified the police that several of the windows had broken locks, and it would have been easy for any would-be burglar to enter my home. My landlord did later tell us that he was aware of the broken locks, but said he had placed sticks in the window so that they could not be opened (we did not find any).

Was my landlord negligent in not telling me of the broken windows and is he responsible for any of my loss?

ANSWER: Kellman: Yes, your landlord may be liable for your losses due to his negligence. You must first prove that the windows could not have been locked securely, which is true in your case since they were admittedly broken. Your landlord, of course, will say that the sticks he supplied locked the windows but that seems like a flimsy excuse since you did not see any such devices and apparently they did not work anyway.

You will need to show that your landlord knew or should have known about the inadequate locks which seem pretty easy in your case since he was aware of the broken windows.

So far so good. Now you must show that the landlord either failed to promptly repair the locks or at least that he failed to warn you that they were broken at that time. If you can do this (and it seems you will be able to), you will have proven a case of negligence.

Finally, you need to prove your damages. Under negligence law, the landlord will be liable for the value of the stolen items at the time of the theft, not what it would cost to buy them new.

Of course, some items like crystal and china may actually be worth more now than what you paid for them. Make an inventory of the losses and present it to your landlord. He may respond directly or turn it over to his insurance company.

If that does not resolve the matter, consider the Small Claims Court if the losses are not beyond that court's limit.

Smith: Not so fast, Steve. Generally, except under special circumstances, California landlords are not legally responsible for loss to the resident's personal property, possessions, or personal liability, and the landlord's insurance will not cover such losses or damages.

There is no guarantee for the security of personal property. In this case, the burglary is an unforeseeable criminal act by a third party. Costly misfortunes of this nature cannot be pinned on the landlord. The writer will have the burden of convincing the court that the landlord was responsible and that her damages are reasonable.

In particular, the court will have to be convinced that the burglar would not have broken in through the windows "but for" the locks being defective. That's a tall order in this case.

Further, she will have to shoulder some of the responsibility for failing to keep the sticks in place or place her own locks on the windows. Any award would be reduced in proportion to her own negligence.

If California tenants desire to protect themselves and their property against loss, damage, or liability, I strongly recommend that they consult with an insurance agent and obtain appropriate coverage for fire, theft, liability, worker's compensation, and other perils.

No breakable leases

I am a student and have just signed a one-year lease for a three-bedroom apartment, along with my roommates. If I get a job offer that requires me to move, is there a way to break the lease? A friend told me there was a special law if you had a job transfer.

Griswold: No, your friend is wrong as there is no such law that would allow you to break the lease just because you want to accept or even must accept a job transfer. There are no simple ways for a tenant to break a lease for any reason other than a serious breach by the landlord. Even that would require you to prove the breach and remember that you are personally responsible for up to the entire amount of all rent due during the entire lease.

You and each of your roommates are joint and severally responsible which means that the landlord can look to any one of the roommates they want -- they are not required to go after all roommates. Thus, landlords will usually go after the most responsible roommate for the entire amount, which means that roommate would then have to try and recover from the other roommates.

This can be a very dangerous legal position for someone that is a responsible person with a job or assets and roommates that are not as responsible or fiscally solvent!!

Take a picture

I am moving out of an apartment in the beach area. My roommate and I have been notified that our landlord has no intention of properly evaluating the use of our security deposit and is planning on not returning a single cent in order to pay for painting and carpet cleaning. She reportedly does this to all of her tenants.

We have hardly done a speck of damage. We hung some pictures and that's about it. We intend to spackle the small holes and touch up the paint before we leave. A Web site says she has 30 days to return the deposit to us providing the place is left how we found it, with the exception of normal wear and tear.

I have also been told that it is the law that the landlord must take care of those things between tenants without using the deposits of the former occupants. Can she do this? Do we even have an issue worth pursuing?

Griswold: You cannot always rely on the tenant/landlord information on the Internet as the laws vary greatly from state to state. In California, the landlord has only 21 days to account for your deposit and cannot automatically deduct for painting but only if the damage is beyond ordinary wear and tear.

Carpet cleaning and cleaning of the unit are not subject to ordinary wear and tear, thus you must remove any/all dirt that entered your rental unit during your tenancy regardless of source.

I strongly suggest you send a letter to your landlord explaining that you want to know exactly what you should do to be able to get your entire deposit returned. The landlord may try to get away with something but you should document the condition and seriously consider hiring professional cleaners for the cleaning and carpet cleaning so that the unit is sanitized and the landlord has no basis for having the work done by someone else and
charging it back to your security deposit.

Hopefully, your letter expressing your concerns and stating that you know something about your legal rights will discourage your landlord from any unethical behavior. So I would suggest that you wait and see what the response is and then it may indeed be worth pursuing.

IF YOU'RE A TENANT OR LANDLORD, the authors stand ready to answer your questions in this column, although letters cannot be answered individually. Write them at: Rental Roundtable, Homes Section, San Diego Union-Tribune, P.O. Box 120191, San Diego, CA, 92112-0191. Or you may e-mail them at rgriswold.sdut@retodayradio.com

Copyright Union-Tribune Publishing Co.

Back to 2000 Rental Roundtable Index

Robert Griswold and the Real Estate Today! radio show strongly support the intent and the letter of all federal and state fair housing laws. As a reminder to all owners and managers of real estate, note that all real estate advertised is subject to the Federal Fair Housing Act, which makes it illegal to advertise "any preference, limitation, discrimination because of race, color, national origin or ancestry, religion, sex, physical disability, or familial status, or intention to make any such preference, limitation or discrimination." Additional state and/or local fair housing laws may also apply. Be sure to inform all persons that all dwellings offered or advertised are on an equal opportunity basis.

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Revised and Updated - Wednesday, April 26, 2006

Robert S. Griswold, CRE, CPM, CCIM, PCAM, GRI, ARM
Griswold Corporate Center
Griswold Real Estate Management, Inc.
5703 Oberlin Drive, Suite 300
San Diego, CA 92121-1743
Phone: (858) 597-6100
Fax: (858) 597-6161
Email: rgriswold.ret@retodayradio.com