While most landlords are responsive to their tenants’ needs, there are many who remain unreliable, unreachable, and uninterested in their tenants’ wellbeing. These landlords consistently find themselves embroiled in tenant injury claims and lawsuits.
If you’re a tenant who’s been injured, or you’re concerned about safety because of a dangerous condition inside your apartment, the building or in the common area of your complex, you’ll find this section helpful. We’ll review:
- Landlord liability and tenant burden of proof
- Effective notification to the landlord about dangerous conditions
- Using governmental agencies for help when dealing with an unresponsive landlord
- Using of evidence like photos, video and witness statements
- Dealing with the landlord’s insurance company
- When to hire a personal injury attorney
Landlord Liability and Tenant Burden of Proof
While each state has its own laws regarding landlord-tenant disputes, the general theme of landlord-tenant laws is universal. To read about specific landlord responsibilities and laws in your state go to hud.gov.
Landlords have a legal duty of care (obligation) to make their premises safe and habitable for their tenants. This includes the tenants’ apartments and the common area in the apartment complex. The landlord’s duty includes making regular inspections of the premises to determine if dangerous conditions exist.
Although landlords normally don’t have a duty to enter individual apartments to look for dangers, they must respond, in a timely way, to tenants’ notifications about dangerous conditions, especially when those conditions pose an imminent threat of injury to the tenant or his guests.
When a landlord breaches (violates) her duty of care, she’s considered negligent. When her negligence results in injury to a tenant, the tenant then has a right to compensation for damages. Damages can include the tenants’ medical bills, out-of-pocket expenses for medicines, lost wages, and pain and suffering.
To succeed in a personal injury insurance claim against the landlord, a tenant must prove his landlord was negligent. This is the tenant’s burden of proof. The tenant must show that the landlord knew, or should have known of a dangerous condition and failed to repair that condition.
When it comes to the apartment complex’s common areas, the law gives a landlord a reasonable amount of time to discover a dangerous condition and repair it. Although landlords have a duty to make regular inspections of the common areas, sometimes dangerous conditions appear suddenly.
It’s unfair to hold a landlord liable when she’s done everything reasonably possible to discover and repair a dangerous condition on her property. If a landlord can show that, the tenant may have a difficult time proving landlord negligence.
For example, if a shelf in the fitness room suddenly broke and several weights fell off, injuring a tenant, the landlord might not be liable. Presuming the shelf was holding the correct amount of weight and the landlord made regular inspections of the fitness room, the landlord didn’t have reasonable notice of the danger or a reasonable amount of time to replace the shelf.
If the shelf had a crack and the landlord didn’t notice it during regular inspections, or if a tenant gave the landlord notice of the crack but she failed to repair it, then the landlord would be liable.
Negligence Per Se
Sometimes a landlord is liable for a tenant’s damages regardless of whether notice was given. This is called negligence per se, a Latin term meaning “in itself.” Under the rule of negligence per se, the law can find the landlord automatically liable for a tenant’s injures.
With negligence per se, an injured tenant doesn’t have to prove the landlord knew, or should have known about a dangerous condition. The mere existence of the dangerous condition is enough to prove the landlord’s liability.
For example, if a tenant suffers burns from a fire in her apartment, and the tenant later learns the smoke alarm was broken, under the rule of negligence per se the landlord is automatically liable. Or, if a landlord knew his tenants had young children and he failed to place a fence around the swimming pool, he would be negligent per se if a child drowned.
Whether or not a landlord was negligent is usually left to the courts to decide. The issue is decided before a trial begins so the victim (plaintiff) will know ahead of time whether he has to prove negligence.
Effective Notification and Using Government Agencies
In most cases, it’s up to you to prove negligence. To do that, you have to show that the landlord knew the dangerous condition existed and failed to address the condition in a timely manner. This usually boils down to notification. Did you notify the landlord about the dangerous condition, and despite the notification did he fail to act to address that condition in a timely way?
There are several ways to give notification:
- Write out your notification.
Although telephone calls and emails are acceptable legal notice, your landlord can conveniently forget you called or claim she never received your emails. Instead, write a letter. In it, detail the dangerous condition. Explain your concerns about the potential harm it may cause to you and your guests.
Unless the condition is so dangerous as to require immediate repair, give your landlord a reasonable amount of time to make repairs. Anywhere from a week to 30 days is usually enough. Send your letter certified mail, return receipt requested. Also send a copy via regular mail. This will make it very difficult for the landlord to say he never received it.
- Notify government agencies.
You can contact the complaints department of Housing and Urban Development. If you meet the financial criteria and have evidence your landlord permitted unsafe conditions to exist in your apartment, HUD will investigate your claim at no cost.
Some cities have a 311 telephone number for government information and civil services. When calling, you can choose one or more agencies dealing with consumer affairs and landlord-tenant disputes.
- Contact private agencies
Report your landlord problems to a specialist. For a small fee, the Rental Protection Agency will contact your landlord and try to convince her to make the necessary repairs. The RPA has offices in all 50 states. Even if the representatives are unsuccessful, you can use its official complaint form as evidence you gave your landlord adequate notice.
- Contact your local Better Business Bureau.
It can rate businesses, including property owners, landlords and property management companies. The representatives will note your complaint, and you can use it to support your injury claim.
Using Evidence to Prove Your Claim
Photographs and videos
You can bolster your injury claim with photographic and video evidence. Taking multiple pictures of the dangerous condition is a graphic way to illustrate the danger as it first existed and as it’s gotten worse.
Be sure to use the date and time stamp function on your camera or cell phone. Photograph the condition from various angles, showing how the condition is clearly dangerous. Make copies of your photographs and video and send them to your landlord along with your initial certified letter.
Witnesses and witness statements
Witnesses are invaluable in proving a dangerous condition exists. Family and friends make good witnesses, but neighbors and independent people are the best. Anyone who doesn’t have a personal or financial interest in the outcome of your claim is more credible.
Show your witnesses the dangerous condition. Tell them about your landlord problems. Ask them to write down what they saw in detail and their opinion of the danger it poses. Ask them to sign and date their statements. You can include copies of your witness statements with your initial letter.
Medical charts and bills
If you’re injured, you must seek medical care. Although accumulating evidence is vital, without medical proof linking your injury to the dangerous condition, your claim will fail. The law requires you to prove the condition was the direct and proximate (legally acceptable) cause of your injury. This requires medical records.
If your injury is serious enough to require emergency medical care, call 911. Responding paramedics will treat you and create a “patient transfer report.” In the report, they’ll describe your injury and explain how it happened. Make sure you tell the paramedics exactly how you were injured. They will enter the information in the report. Ask for a copy.
When you arrive at the emergency room, the admitting nurse will ask you to describe your injury and how it happened. Once again, it’s important to explain clearly. Each time you repeat the details of your injury is another link showing direct and proximate cause.
If your injury doesn’t require emergency medical care, you still must seek treatment at a local clinic or from your private physician. Time is of the essence. The sooner you seek treatment, the stronger the link between your injury and your landlord’s negligence. The more time that passes, the greater the chance your landlord and her insurance company will say your injury was due to something else.
Your Landlord’s Insurance Company
If you were hurt in your apartment or in the common area of your complex, you have to deal with your landlord’s insurance company. The problem is if your landlord hasn’t cooperated so far, there’s a good chance she’s not going to start now. If that’s the case, you’ll have to get creative.
There are a couple of ways to get the name of your landlord’s insurance company. The obvious way is to ask her. Another way is to go down to your local county property records department. There, you can probably find the deed to the apartment complex’s property.
If there’s a mortgage on the property, the mortgage company (bank or financial institution) requires the owner to carry property insurance. That’s how mortgage companies protect their investments (loans) from third party lawsuits, judgments and liens on the property. Usually, the name of the insurance company is in the deed of trust, recorded along with the other property documents.
Another way is to hire an attorney. Most attorneys can deal with landlord problems. The mere threat of a lawsuit is often enough for the landlord to cooperate. If not, your attorney may have to file a lawsuit against the landlord. Your attorney will then have the right to subpoena the name and address of the insurance company.
Personal Injury Attorneys
If your injuries are the soft tissue kind, like sprains and bruises or minor cuts and abrasions, you can probably handle your own insurance claim. If you hire an attorney for such a minor claim, her contingency fee may severely lessen your net settlement. You may not even be able to find an attorney to take your case.
On the other hand, if your injuries are the more serious hard injuries, including broken bones, head injuries, second- or third-degree burns, scarring, or other injuries requiring extended hospitalization, you need an experienced personal injury attorney. There’s just too much at stake.
A personal injury attorney can deal with landlord issues by taking depositions (recorded statements), subpoenaing management records, and if necessary, filing a lawsuit. In a serious injury case, an attorney can settle your claim for substantially more than you could on your own.
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