Landlord’s Liability for Criminal Acts of Third Parties
In general a person has a duty to protect others for criminal acts of third persons absent a special relationship. Special relationships may exist for innkeepers and common carriers.[1]
At common law no such special relationship between landlord and tenant and the landlord had no duty to protect the tenant from third party criminal act. Courts have historically been reluctant to move away from this common law rule for a variety of reasons.
Among the reasons for the application of this rule to landlords are: judicial reluctance to tamper with the traditional common law concept of the landlord tenant relationship; the notion that the act of a third person in committing an intentional tort or crime is a superseding cause of the harm to another resulting therefrom; the oftentimes difficult problem of determining foreseeability of criminal acts; the vagueness of the standard which the landlord must meet; the economic consequences of the imposition of the duty; and conflict with the public policy allocating the duty of protecting citizens from criminal acts to the government rather than the private sector.[2]
In Kline a tenant was assaulted in a hallway of the apartment building. There had been prior criminal incidents of which the landlord was aware. Nevertheless, the landlord reduced the security measure that had been in place when the tenancy began.
The court found the landlord liable because 1) the landlord has a general duty to maintain common areas 2) the modern landlord-tenant relationship is more analogous to that of innkeeper than to the agrarian landlord-tenant relationship of the past and 3)modern jurisprudence views a lease as a contract as well as a conveyance and the tenant in the case bargained for the security measures that were in place when she entered into the lease.
Some subsequent cases have viewed Kline as limited to the rule that a tenant is entitled to the same security measures that were in place when the lease was entered into.[3]
The Supreme Court of Massachusetts has considered whether criminal acts of third persons breach the implied warranty of habitability or the covenant of quiet enjoyment.[4]
The Court held that behavior of third parties does not violate the warranty of habitability because it does not relate to a physical defect in the building.
The plaintiffs have pointed to no case in which a landlord was found to have breached the warranty of habitability as a result of a nonphysical “defect” in the premises, and our own review of our case law and that of other jurisdictions likewise reveals no such case. But see Pippin v. Chicago Hous. Auth., 78 Ill. 2d 204, 214, 35 Ill. Dec. 530, 399 N.E.2d 596 (1979) (Clark, J., Concurring in part and Dissenting in part) (“Safe encompasses both the physical and social conditions of the premises”). The plaintiffs rely on Trentacost v. Brussel, 82 N.J. 214, 412 A.2d 436 (1980), where the Supreme Court of New Jersey held, in general terms, that the warranty of habitability included the provision of reasonable measures of security. Trentacost, supra at 227-228. In Trentacost, however, the plaintiff was attacked in the hallway of an apartment building that had no lock on its front door. Id. at 218. The court found that the landlord breached the warranty because he failed to secure the front door in any way.[5]
The Court remanded for further proceedings on the issues of whether the covenant of quiet enjoyment had been violated.
The issue on which our decision turns…is whether this serious interference with the tenancy of the plaintiffs is the natural and probable consequence of what the landlord did, failed to do, or permitted to be done. We conclude that this is a question of fact to be determined on remand. There is no authority, however, for the proposition that the defendant must provide around the clock security or other police services. In fact, the decision as to the proper means to ensure security is a discretionary decision left to the housing authority. Accordingly, we cannot say that the defendant breached the covenant of quiet enjoyment by failing to provide particular security measures. We do believe, however, that if the defendant has failed to take any measures, especially those measures which can be undertaken relatively easily, to remove unwelcome persons from the property that it owns and controls, and the presence of those persons seriously interferes with the tenancy, then the defendant may be liable for a breach of the covenant of quiet enjoyment.[6]
In a commercial setting courts may be more open to finding a special relationship and imposing liability.[7]
[1] See Prosser, Handbook on the Law of Torts §56 and Restatement (Second) of Torts §314A.
[2] Kline v. 1500 Mass. Ave. Apartment Corp., 141 U.S. App. D.C. 370, 439 F.2d 477, 481(1970).
[3] See, for example, Dietz v. Miles Holding Corp., 277 A.2d 108(1971); Williams v. Williams J. Davis, Inc., 275 A.2d 231(1971).
[4] Jane Doe v. New Bedford Housing Authority, 630 N.E.2d 248, 417 Mass. 273 (1994).
[5] Id.
[6] Id.
[7] See, for example, Morgan v. Bucks Associates, 428 F.Supp. 546(1977).