The court of appeals recently released its decision in the case of Maryland Arms Limited Partnership v. Connell. This decision has been reccomended for publication. The issue in this lawsuit was whether the landlord or the tenant should be liable for damage to an apartment unit when the damage was not caused by the negligence of either the landlord or tenant. The Court of Appeals held that it is the Landlord that should be held liable in such a situation. As such the case will now stand for the proposition that a tenant cannot be held liable for his/her actions that damage the property unless the damage is caused by the tenant’s negligence
The facts were as follows and were not disputed by either the tenant or the landlord:
- A fire occurred in the tenant’s apartment and caused $8,000 worth of damages while the tenant was asleep.
- The fire started from a hair dryer owned by the tenant which was plugged into the elctrical outlet.
- The tenant did not know that the hair dryer was deffective when it was left plugged into the electrical outlet.
- The tenant and the landlord both agreed that the tenant was not negligent in causing the fire as she had no indication that anything was wrong with the hair dryer when she left it plugged into the outlet.
The rental agreement that was signed by both the tenant and landlord included the following language:
“Lessee shall be responsible for all intentional and negligent acts or breaches of thie Lease by the Lessee, Lessee’s occupants, guests, or invitiees. Lessee shall be liable for all damage to the premises and appliances and equipment belonging thereto, in any way caused by the acts of Lesee, Lessee’s occupants, guests and invitiees.”
As a result of the above language the trial court (Judge Michael Brennan of Milwaukee County) granted judgment for the landlord and against the tenant.
A majority of the Court of Appeals (the court was divided as one judge dissented) reversed the trial court’s ruling and remanded the case back to the trial court directling it to enter judgement against the landlord.
In essence the Court of Appeals voided the lease language that is underlined above becasue it felt that the lease provision was contrary to the Wisconsin Statutes governing Landlord Tenant Law – specifically sec. 704.07, Wis. Stats.
Sec. 704.07 states that a landlord is required to make repairs to the property unless the repairs were made necessary by the negligence of the tenant. Sec. 704.07 also states that a tenant must repair damage if it is the result of the tenant’s negligence.
The Court of Appeals did admit that sec. 704.07 does not specifically address the issue of who should be responsible in a situation where the damage was not caused by the negligence of either the landlord or the tenant. The logical outcome should then be to look to the rental agreement and determine what the parties agreed to in such a situation. If that was done then the tenant would be liable for the cost of the fire damage repair.
Instead the Court of Appeals held that the only logical conclusion that one should come to after reading the statute is that it is the landlord’s responsibility to pay for the damage because the damage was not caused by the tenant’s negligence.
This is just another example of the courts going out of their way to protect the tenant at all expenses. It seems as if the Court decided the outcome that they wanted and then did whatever was possible to piece together an argument to support that outcome rather then following and applying the law as written and then arriving at the outcome. I’m assuming the landlord had insurance and the Court felt that as such the landlord would be better able to handle the repair costs.
Landlords already have statutes and administrative code regulations that tell them what they can and cannot include in their rental agreements. Now we have a case that essentially says that even if a statute or regulation doesn’t prevent you from including certain language in your rental agreement, if we (the Court of Appeals) don’t like the provision that was included in then we will find a way to make it void and unenforceable.
The only voice of reason appears to be in the dissent which is authored by Judge Ralph Adam Fine — who by the way was once a member of my law firm Petrie & Stocking S.C. (we only hire the smartest and brightest ; ) — who concluded that while the landlord would have a duty to repair the fire damage there is nothing in the statute that requires the landlord to be responsible for the cost of the repairs in the end especially when the parties agrees differently in the rental agreement.
It is yet unknown if the landlord will appeal this decision to the Supreme Court of Wisconsin or even if it did whether or not the “supremes” whould agree to hear the case. So it appears as if for now at least we have precedent in this case that is not very favorable to landlords.
What are your thoughts on this decision?
#1 by Tom Holster on July 28th, 2009
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This is a difficult case but I don’t think it’s fair that the landlord has to take complete financial responsibility. There are other cases in which the tenant is not necessarily negligent but has more responsibility in the chain of events leading up to property damage than the landlord has. We have encountered a similar situation in one of our rental properties but rather than a fire, it involves damage to property caused by a tenant’s medical condition (namely epilepsy). The tenant blacked out in the shower and broke off the tub faucet and we are now disputing who should be responsible for the cost of the repairs. The tenant has lied to us many times and I am very skeptical about her true medical history, but I do not know how this will play out in court.
The tenant called me on a Saturday morning and explained that she had blacked out while showering and accidentally broke off the tub faucet. She demanded that we have it fixed immediately. She said that she had a doctor’s appointment on Monday and needed to shower before then. I said that I could call a plumber but that they would charge a premium for a weekend service call and furthermore since she caused the damage, she would have to pay the bill. She screamed at me and said that it was the landlord’s responsibility to maintain the plumbing systems and that she would not pay. She hung up on me and after a few subsequent phone calls, she said that if she had to pay, then she would have her friend who is a plumber come and fix it. That never happened and she eventually called the City Inspector. We met the City Inspector at the property and agreed that it is the landlord’s responsibility to have it fixed but he did not know and didn’t want to comment on who was financially responsible. We had our plumber fix it and billed her for it with her next month’s rent statement. She paid her rent but not the plumbing bill (amounting to about $100) so we gave her a 5-day notice. She did not pay within the 5 days so we are now starting an eviction action.
When we met with the City Inspector we saw that the tenants had torn all of the carpeting out of the living room where they were keeping two caged puppies and the puppies’ mom. There was urine flowing on the living room floor from the puppies’ cage to the living room wall. The damage will be significant and if we have to fight them in court on a $100 plumbing bill, I am guessing we will have a bigger fight when we sue them for damages. She claims that they have been working with a Judicare attorney who will represent them in court. If we lose the eviction hearing I guess we will have to wait until the end of the lease to pursue the additional property damage.
Have you heard of any similar cases? If a tenant accidentally damages property due to a diagnosed medical condition are they not financially responsible for the damage? Please let me know your thoughts. Thanks!
#2 by Tristan on July 28th, 2009
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Tom — Thanks for commenting on this post. I am sorry to hear that you are stuck in the middle of such a sticky situation. I personally feel that your tenant is clearly responsible for the plumbing repairs since she caused the damage. I guess your tenant could argue that based on the holding in the case that I posted about she was not negligent since she allegedly passed out and and broke off the faucet and therefore since neither she nor you were negligent that the cost of repairs are your responsibility.
Never let your tenants make any repairs to your investment property. Since it is your responsibility to provide a safe and habitable home to your tenants and since you own the property – you should always make the repairs. If you let the tenant make the repairs and they hire a substandard contractor, friend, or relative, who does a poor job causing more damage then you are in a worse situation. So you were correct in making the repairs yourself and then sending her the bill.
If your property is in Milwaukee County you may have some trouble with your eviction because the court commissioners are reading the 5 day Notice statute very literally these days. They aresaying that you can only issue a 5 day notice for non-payment of “rent.” Unless your rental agreement has some language in it to the effect that the cost of repairs are to be treated as “rent” you may end up having your eviction dismissed since you issued a 5 day notice for something other than the non-payment of rent. For more information on this issue please see my earlier post on 5 day notices and late fees from May 8, 2009.
You did not mention if this tenant is on a term lease or is month to month but that could certainly factor into your decision on which notice to serve on them and your ensuing eviction. I would also consider sending them a notice regarding the pet damage to the carpet and floors.
You also may have a good argument to obtain double damages with regard to the pet damage becasue the facts you mention sound similar to those in the case of Three and One Company v. Geilfuss, 178 Wis.2d 400. 504 N.W.2d 393 (Ct. App 1993) in which the court allowed the landlord double damages due to the tenant committing “waste” by allowing their pets to use the landlord’s property as a litter box.
Good luck.