The Duty of Care – what does this really mean to a rental property owner?
Case law and legislation by lawmakers across the country have established the public policy that landlords exercise reasonable care in managing their properties to prevent foreseeable injuries to others. Consequently, this duty of care is owed by landlords to all people — whether they live on the premises, are visiting as guests, or even trespassing. That last category pushed the concept of duty of care into a gray area in respects to trespassers who are on a property with intent to commit a felony, such as theft. The resulting public outcry after several court decisions held that property owners owed a duty of care to those injured while illegally on a property led to laws in many states negating landlord liability to criminals.
Aside from that exception, a landlord who is cognizant — or should have been cognizant — of a perilous situation on his or her property will be held responsible for injuries incurred on that property. A point the courts will consider in deeming liability is the cost and availability of insurance to cover the risk. If a landlord fails to carry an easily purchased and reasonably priced insurance policy, it can cost the landlord even more. (Whether your insurance company will cover the claim is a separate issue.)
The best overall strategy for a landlord is threefold: to understand and meet the requirements of duty of care; to carry enough insurance to cover unforeseen claims; and to have further protection with the proper legal entity. To help meet these requirements, it helps to also know about the Duty to Inspect.
Inherent in the duty of care to prevent injuries is that a landlord has a duty to inspect the property for unsafe conditions. A reasonable inspection is required every time the landlord renews, extends or first enters into a rental agreement. Negligence in inspecting the premises at such times leaves the landlord vulnerable later on to being charged with foreknowledge of an unsafe condition that the landlord should have found during the inspection.