Is Landlord Responsible for Protecting Tenants from Vicious Dogs?

Is Landlord Responsible for Protecting Tenants from Vicious Dogs?

Robert S. Griswold | Steven R. Kellman | Ted Smith
13-June-1999 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.

Q: We have a perpetual problem with loose and vicious dogs in my area. I
have rented a small apartment for over a decade and the owners have
continually refused to install adequate gates and fences even though
virtually every other home or rental on our street has been secured this
way.

The property manager is no help and tells us to call Animal Control. I have
done this and they have used pepper spray on dogs several times, but the
problem continues. This is not just an annoyance as the dogs are a real
threat to our safety.

I know that neglectful dog owners can be sued if I am attacked, but aren't
the owners and managers of my property liable if I am attacked and hurt by
these dogs?

A: Kellman: When a landlord knows of a foreseeable danger to tenants at the rental site, he or she should act to protect them from that danger.

The situation where a landlord may need to provide some security is more
common when the tenant is at risk of becoming the victim of crime. For
example, if the apartment is in a high-crime area, the landlord should
provide adequate locks, security gates or maybe even a security guard
service.

The level of security provided should match the seriousness of the danger.
The property owners in your neighborhood seem to agree that there is a
danger with loose dogs since they have already installed fences and gates
at their properties.

Based on the other properties with fencing and your complaints, your
landlord now knows or should know of this danger. As such, your landlord
may be legally responsible to take action to protect you from those dogs.

This action may include providing proper fencing and gates to keep those
dogs on the outside looking in rather than allowing the opposite to occur.
This is especially true when the fencing and gates needed are not very
expensive compared with the great benefit of avoiding a foreseeable
personal injury.

Just telling you to call Animal Control when loose or vicious dogs threaten
you is simply not adequate. Although certainly helpful when they arrive,
these officers can not stand guard 24 hours a day to keep unwanted dogs off
the property, as fences and gates can.

Smith: California landlords cannot be held accountable for every risk
inherent in your apartment living environment. The general rule is that the
landlord is not responsible for unforeseen acts that cause you injury. It
is not reasonable to guarantee your safety while renting the house. I
disagree with Steve Kellman -- the landlord cannot shoulder the blame
because the adjacent owners have failed to control their vicious dogs.

To hold the landlord legally accountable, he would have to have been put on notice of the specific danger and then failed to take action. It seems to
me that it would be a better idea for a legal action to be directed against
the neighbors who own the dogs, rather than blame their actions on your
landlord.

The real culprit is the dog owner, who apparently is irresponsible and
failing to take action to keep his dogs from straying. Try Animal Control
again. If they fail to act, consider a court restraining order forcing the
dog owner to control the dogs.

Q: Can I withhold rent until repairs are made?

A: Griswold: It depends on the repairs. Health and safety or habitability
items are potentially eligible for "repair and deduct" statutes in
California; however, you must provide the owner with reasonable notice and the opportunity to make the repairs in a timely manner.

The seriousness of the problem will determine the length of time the owner
has to make the repairs. The appropriate California Civil Code section is
1942.2.

As a property manager, I would advise you to be fair and realistic about
your expectations and be sure to give the owner or manager every
opportunity to correct the problem, if it's not a serious habitability or
health and safety item.

On my radio show, I often hear complaints about landlords not addressing
repairs only to find out that written notice was never given. I have also
heard of many instances where the landlord or a repair person attempted to
make the repair, but the tenant failed to advise the landlord that the work
had not been completed correctly. Communication is the key.

A: Smith: Robert correctly points out the general rule regarding "repair
and deduct" in California. As the landlord's attorney, I caution tenants on
using this procedure.

First, the landlord must be given written notice and an opportunity to cure
the defects before the tenant can take any action. The problems must be
serious -- posing a substantial health and safety hazard. The tenant has no
right to repair and deduct if the defects are minor or cosmetic in nature.
Assuming all criteria have been met, the repair and deduct law may be used only once every six months, and the total costs incurred cannot exceed one month's rent. Based on these limitations, I rarely see proper use of the
repair and deduct procedure.

Prudent landlords want to take care of their own repairs rather than let
the tenants make the repairs and deduct the costs from rent.

Q: I have been renting a condo for nearly five years and despite my
attention to all of the general maintenance items, I feel that it's time
for some upgrades, specifically the carpet and paint.

The painting is needed only in high-traffic areas, but the carpet is
original and is 15 years old. Despite having it professionally cleaned, it
is faded and frayed. I would also like to install a garage door opener,
primarily for my convenience as the association is now enforcing a
requirement that vehicles must be parked in the garage. I would be happy to
do all the work necessary to find the best deals (and even do some of the
work myself), I just don't want my rent to go up as a result of any
improvements. Would it be reasonable to ask my landlord to pay for any of
this?

Q: Kellman: You face a common problem shared by many tenants regarding repairs or maintenance on nonhabitability conditions.

While the law does not require carpets, they must be replaced when they
become dangerous or unhealthful. Carpets generally have a useful life of
about 10 years. While carpets that are faded and tired do not pose a
habitability violation, being frayed could, since there may be trip
hazards.

Paint usually needs at least some touching up after three years to maintain
a good appearance but the law does not require the paint to look good.
Paint could become a habitability problem after several years with peeling
or mold and mildew problems. You may offer to share in the work to have
these matters handled before they reach the critical stage.

For example, your landlord could supply the paint and you could do (or pay for) the actual painting. As to the carpet, you could offer to pay the
labor costs of moving your furniture and possessions to minimize
installation costs. The addition of a garage door opener is truly a
convenience item and is only supplied by some landlords as an amenity. You could ask your landlord to purchase the opener to enhance the property and offer to pay to have it installed.

While you are not required to do so, making these offers may achieve a real
win-win landlord-tenant relationship. In this way, you both invest in the
property to create a nicer place to live along with increasing the value.
You may also gain protection against a rent increase after the work is done
since you helped pay. Of course, keep in mind that your landlord may raise
the rent (in the absence of any rent control laws) without needing to first
spend some money on repairs to justify that raise.

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 1999 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