Tenants Lose Everything: Will Landlord?

No Renter’s Insurance, No Brain

Rent it Right

by Janet Portman, Inman News

Q: While my son and his girlfriend were visiting us over the holidays, a water main in their apartment burst and flooded their apartment. All of their possessions — clothes, furniture, everything — were ruined by the water or the resulting mold. Is the landlord responsible for replacing these items? –Sharon P.

A: If your son had renters insurance, the answer to your question would be short and sweet: Call the agent and file a claim. Renters insurance, which typically costs just a few hundred dollars a year, will cover the damage you’ve described.

But since you didn’t mention it, I’ll assume there’s no insurance to cover the damage. Then, the answer to your question depends on why the water main broke — and more specifically, who’s responsible.

The main itself is under the control of the landlord, as are other major elements of the building and its systems. If the break resulted from the landlord failing to maintain it, one could argue that the landlord was negligent.

For example, if the owner knew that the pipes were in danger of bursting (because they were old or had been repaired in a faulty way, for example) but did nothing to deal with the problem, your son might be able to convince a judge that the landlord’s carelessness resulted in the break, which resulted in his losses.

That will get your son’s foot in the door to make a claim against the landlord’s insurance policy. The insurance carrier, which has contractually agreed to pay for damages caused by the landlord’s negligent acts, should step up.

But suppose the pipe burst from no fault of the landlord? Did unusually cold weather put stress on a pipe that normally would hold just fine? Or did the pipe break for no apparent reason, with no warning? If the landlord was not negligent, he isn’t responsible for the damage suffered by his renters.

Losses that result from accidents or defects on the property are the landlord’s responsibility only if he was careless or otherwise actively failed to maintain the property.

(Here’s an interesting wrinkle: Suppose the pipe burst through no fault of the landlord, but he was inexcusably slow to respond and made no efforts to save his tenants’ possessions, knowing the residents were absent. Then, you’d be dealing with negligence in the landlord’s response, which might be enough to lay responsibility on him for damage, such as mold, that could have been avoided had he acted promptly.)

Back to renters insurance, for a moment. If your son had it, the carrier would pay him with no questions asked regarding the culpability of the landlord. If the carrier suspected that the landlord had carelessly failed to maintain the pipes, it could proceed against him (or, more likely, his insurance company), to be reimbursed for what it already paid your son. And if your company couldn’t pin the cause on the landlord, they’d be out of luck — but your son would still have his money.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of “Every Landlord’s Legal Guide” and “Every Tenant’s Legal Guide.” She can be reached at [email protected].
Copyright 2010 Janet Portman

See Janet Portman’s feature, How to Write a Bulletproof Lease Guarantee.

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