Landlord Liability… Or Not?

The general rule in Florida is a landlord is not responsible to a tenant for personal injury or damage to property. In 1942, Florida’s Supreme Court explained the general law of Florida to be that a landlord is not responsible for injuries or damage to property caused by defects in the premises unless the landlord makes some warranty or agreement as to the condition of the leasehold. The court further explained a landlord is also not responsible for repairing the premises, unless made responsible by the lease or agreement.

The legislature did not like landlords having no responsibility, so the issue was addressed by statute. Residential landlords are now required to comply with all applicable building, housing, and health codes. Where there are no codes, at a minimum, statute requires residential landlords to maintain roofs, windows, doors, floors, steps, porches, exterior walls, foundations and all other structural components in good repair and capable of resisting normal forces and loads plus keep the plumbing in reasonable working condition. Statute also mandates residential landlords make sure there are screens installed and repair screens at least once a year. 

There is a loophole from these requirements for single family homes and duplexes. For those properties, the landlord’s responsibilities can be changed or even eliminated in writing.

What else must be done by residential landlords? The statute goes on to state that unless otherwise agreed in writing, residential landlords (other than for a single-family home or duplex) must make reasonable provision for:

1. The extermination of rats, mice, roaches, ants, wood-destroying organisms, and bedbugs. When vacation of the premises is required for such extermination, the landlord is not liable for damages but shall abate the rent. The tenant must temporarily vacate the premises for a period of time not to exceed four days, on seven days’ written notice, if necessary, for extermination pursuant to this subparagraph.

2. Locks and keys. 

3. The clean and safe condition of common areas.

4. Garbage removal and outside receptacles therefore. 

5. Functioning facilities for heat during winter, running water, and hot water.

And, unless otherwise agreed in writing, the landlord of a single-family home or duplex must install working smoke detection.

A landlord who fails to comply with the statute faces liability to a tenant. But the tenant’s rights are contingent on tenant providing landlord 14 days’ notice of the deficiency and opportunity to cure before the tenant can terminate the lease and move out. The tenant can do same with notice of intent to pay reduced rent for the deficiency. Failure to provide the notice before terminating or reducing rent is fatal to the tenant’s exercise of rights.

If the landlord’s failure results in personal injury or damage to the tenant’s property, that creates a prima facie case of liability. Liability is not absolute. The tenant is responsible for taking reasonable steps to avoid harm, even when the landlord allows or creates a dangerous condition. The judge or jury is asked to apportion responsibility between both parties based on the percentage the action or inaction of each contributed to damages.

Some landlords insert clauses in their lease by which the tenant waives statutory rights or releases the landlord from liability. Many tenants believe those clauses are effective and fail to pursue claims against their landlords. But they could. Florida statute makes any provision in a residential lease void and unenforceable if it purports to preclude rights or remedies under Florida statutes or other law.

What about landlord liability when a tenant is harmed by criminal activity of a third party? Landlord liability for criminal activity depends on the facts. There is no rule or statute that sets out a clear line for liability when a residential tenant is harmed by criminal activity. A good explanation and facts under which a landlord was held responsible for criminal harm to a tenant is Ten Associates v. McCutchen.

In Ten Associates, a tenant was raped by a man entering her apartment through a window. The court explained that a landlord is not an insurer of tenant safety, but that there was a growing recognition in Florida that a landlord’s duty of reasonable care may include a duty to protect tenants from reasonably foreseeable criminal conduct.

Ten Associates had knowledge of prior criminal activity at its apartments, including numerous intrusions through windows. The apartments were in a high crime area and Ten Associates hired security guards and advertised 24-hour guard service. Based on those facts, the court found Ten Associates had assumed a duty and that it was up to the jury to determine if Ten Associates breached that duty. The jury found Ten Associates liable for not taking sufficient, reasonable precautions. Foreseeability of the criminal activity was a key component of that liability.

Other cases have held landlords liable for failure to maintain adequate locks required by that statute which allowed criminal entry. Recent decisions have held landlords liable solely for failure to warn if the landlord is aware of any criminal activity on site. Those cases place the landlord and tenant relationship in a special class not governed by the general rule that a person has no duty to protect others against potential third party criminal acts. But even those cases do not make a landlord the guarantor of tenant safety.

It appears the trend in Florida is toward finding landlords liable for harm to tenants. Liability can be based on breach of statute or a duty which the landlord voluntarily assumes by contract or action. It can also be based on the more recent judicially explained duty to warn. Landlord liability to tenants is still not absolute and seems to be increasing. Courts seem increasingly willing to agree with claims to liability when the court finds the landlord has been negligent and that negligence contributes to tenant harm.