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    Property Law Legal Research Blog

    D. Bradley Pettit

    Recent Posts

    Landlords' Liability to Guest of Tenant for Dog Bite Injury

    Posted by D. Bradley Pettit on Wed, May 9, 2018 @ 10:05 AM

    Brad Pettit, Senior Attorney, National Legal Research Group

                A decision by the Supreme Court of Idaho illustrates the difficulties that a guest of a residential tenant may face when trying to hold the tenant's landlord liable for injuries sustained by the guest when the guest was bitten by the tenant's dog. See Bright v. Maznik, 162 Idaho 311, 396 P.3d 1193 (2017). In Bright, a guest of the tenants advanced several theories of liability in her suit against the tenants' landlords: negligence per se under Idaho's vicious dog statute, breach of duty to protect the guest from an animal known to have vicious tendencies, common law negligence, voluntary assumption of duty, and premises liability. None of these claims were successful, primarily because the plaintiff failed to make the requisite factual showings that the landlords either "knew" about or "harbored" a vicious animal on the premises.

                For example, the Bright court found that the landlords could not be charged with "harboring" the tenants' dog on the property, as required under the vicious dog statute, regardless of whether the dog was actually "vicious." Id., 396 P.3d at 1197. The Bright court reasoned that since the term "harbor," as it is used in the vicious dog statute, "contemplates protecting an animal, or undertaking to control its actions," the landlords could not be charged with negligence per se under the statute because there was no evidence in the record that the landlords "received clandestinely and concealed the [tenants'] dog" or "had an animal in [their] keeping." Id. (citations omitted).

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    Topics: guest of tenant, dog bite injury, landlord liability, property

    Landlord's Liability for Collapsed Deck

    Posted by D. Bradley Pettit on Thu, Oct 26, 2017 @ 11:10 AM

    Brad Pettit, Senior Attorney, National Legal Research Group 

                The general rule is that "[w]hile a landlord is not a guarantor for the safety of those persons who might be expected to come upon its property, it does have a duty to make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition."  49 Am. Jur. 2d Landlord and Tenant § 454 (Westlaw May 2017 Update) (citing Rodriguez v. Providence Hous. Auth., 824 A.2d 452 (R.I. 2003)). A recent decision by a Georgia appellate court in a deck collapse case indicates that unless the evidence shows that an out-of-possession lessor of residential real estate knew or had reason to know that a potentially dangerous condition existed with respect to the premises or an improvement thereto, the landlord cannot be held liable for injuries that were suffered by a guest of the tenant due to the alleged failure to repair the premises or to make an improvement. Aldredge v. Byrd, 341 Ga. App. 300, 799 S.E.2d 263 (2017), reconsideration denied (Apr. 26, 2017).

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    Topics: property, collapsed deck, landlord liability

    PROPERTY: Landlord and Tenant: Landlord's Waiver of Right to Charge Penalty for Late Rent Payment

    Posted by D. Bradley Pettit on Mon, May 8, 2017 @ 10:05 AM

    Brad Pettit, Senior Attorney, National Legal Research Group

                "[A]n implied waiver of nonperformance under a contract will be established by a party's conduct inconsistent with the assertion of the right to the performance allegedly waived, or by conduct that indicates that strict compliance with the contract will not be required, provided that the conduct manifests the requisite intent to waive the right to performance or has induced the requisite reliance by the other party." 13 Williston on Contracts § 39:30 (4th ed.) (Westlaw current through May 2015 Update) (footnotes omitted). For example, a lessor who regularly accepts late payments may establish a course of performance or "an order of business," which operates to waive, as to future payments, a provision making time of the essence and to preclude that party from enforcing a forfeiture. Id. It is also a principle of contract law that "[u]nless otherwise agreed, a course of dealing between the parties gives meaning to or supplements or qualifies their agreement." Restatement (Second) of Contracts § 223 (1981) (Westlaw current through Oct. 2016 Update).

                In the landlord-tenant context, "[a] landlord may expressly or impliedly waive the tenant's failure to perform a promise [and] [t]his waiver will deprive him [or her] of the remedies otherwise available for the tenant's default."  Restatement (Second) of Property: Landlord and Tenant § 13 cmt. f (1977) (Westlaw current through Oct. 2016 Update).  For example, "[a] landlord may waive his [or her] right to the prompt payment of rent by acting in such a manner that the tenant is led to believe that a later date of payment than that specified in the lease is acceptable."  Id. § 12.1 cmt. c.

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    Topics: late rent payment, course of performance, implied waiver, estoppel and waiver as affirmative defenses

    PROPERTY: Drafting the Renewal Clause in a Lease

    Posted by D. Bradley Pettit on Thu, Dec 17, 2015 @ 13:12 PM

    The Lawletter Vol 40 No 11

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    Topics: enforceability, Brad Pettit, property, land lease agreement, renewal clause

    PROPERTY: Enforceability of Clause in Residential Property Lease Seeking to Shield Landlord from Liability for Injuries Caused by Mold or Fungus

    Posted by D. Bradley Pettit on Thu, Oct 1, 2015 @ 16:10 PM

    The Lawletter Vol 40 No 8

    Brad Pettit, Senior Attorney, National Legal Research Group

         In 2014, an Indiana appellate court considered the issue of whether a landlord can enforce a provision in a residential lease contract that seeks to protect it from liability for personal injuries caused by fungus or mold on the leased premises. In Hi-Tec Properties, LLC v. Murphy, 14 N.E.3d 767 (Ind. Ct. App.), transfer denied, 20 N.E.3d 851 (Ind. 2014), a tenant who leased an apartment that was below ground level brought suit against her landlord, alleging, inter alia, that mold in the apartment had aggravated her preexisting asthma and caused other injuries. The landlord defended against the tenant's claim by pointing to a clause in the parties' lease agreement that read in pertinent part as follows:

    23. Mold. Lessee acknowledges that no evidence of mold was observed in the living unit prior to leasing. Lessee also agrees to notify Lessor in writing within ten (10) days of observing any mold. Lessor shall then have two (2) weeks within which to remediate the conditions at no cost to Lessee. As part of the consideration of this lease, Lessor shall have no personal liability for personal injury or property damage as a result of any mold, fungus, etc. . . . In any event, Lessee releases and agrees to save harmless, Lessor and their agents for personal injury and suffering, mental anguish, medical expenses, lost wages, etc., to themselves and or family members.

    Id. at 771 (court's emphases omitted).

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    Topics: Brad Pettit, property law, residential lease, landlord liability

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