Introduction
In these unprecedented times, both residential and commercial landlords are facing numerous questions and challenges. Among these is the question of preventing COVID-19 infections on one’s own premises and the possibility of being held liable for a tenant, customer, or visitor being injured as a result of infection. While the particular concerns and mitigation strategies differ between residential and commercial properties, the question of liability comes down to a few key factors: the directness of a landlord’s control over an area and a landlord’s preparation, along with foreseeable or forewarned risks.
Direct or Indirect Control
In general, a landlord’s control over an area within a property determines to what extent a landlord is liable for harm that occurs in that space. In general, where a landlord is responsible for construction and maintenance, said landlord is also responsible for preventable harm that occurs in those areas.
For common areas, such as entrance foyers, shared bathrooms, and traffic ways, a landlord’s liability is fairly cut-and-dry. Less clear is what responsibility a landlord has for tenant-occupied spaces. We know when harm comes through maintenance issues such as a broken water pipe, even within a tenant’s space, liability falls on the landlord.
However, coronavirus is most likely to spread not through maintenance faults, but through the risky behaviors of people. There is a question of whether landlords can force tenants to wear masks or ban private gatherings for residential tenants. In general, the safest course of action for landlords, in legal terms, would be to communicate with tenants and encourage them to adhere to medical and government guidelines.
As landlord control over common areas is well-established and undivided, one way of protecting tenants from infection—and landlords from liability—is to close down or limit access to common areas when possible. In residential buildings, this could mean closing gyms and party rooms, while thoroughly cleaning indispensable shared spaces such as lobbies and elevators. In a commercial property, limiting access to common spaces may involve removing some or all tables in a food court and spacing the remaining ones out to keep patrons at least six feet apart.
Another way to help protect landlords from liability is through a liability waiver. A liability waiver is a simple, familiar, and cost-effective first step that businesses and landlords can take to protect against potential liability for exposure claims.
Foreseeable and Forewarned Risks
In general, a risk which could be foreseen by a reasonable person is a risk for which a landlord can be held liable for. A landlord can reasonably anticipate, human nature being what it is, that crime might occur in a heavily-trafficked public space. Installing security cameras and appointing guards is a reasonable response to a reasonably foreseen risk.
On the other hand, even a risk which is not foreseen as likely but which a landlord is warned about can be a source of liability. If, for example, a landlord is warned that a scam artist is using a community party room to separate residents from their money, but does nothing, the landlord may be liable for failing to act and for creating the impression, in the minds of residents, that the scammer’s behavior was legitimate and endorsed by property management.
In the case of coronavirus, the warnings have been so frequent and so strident that no one can claim not to have been aware of the risk. Any landlord who fails to take action and warn renters is risking not only a lawsuit but also the lives and health of tenants.
Making the Right Moves
The right move, both in business and legal terms, is to do all in your power to limit access to common spaces and maintain lines of communication encouraging tenants and their customers to reduce their risk. Even if you avoid a lawsuit, because the source of COVID-19 can be difficult to pin down, your business will suffer if you are known as a coronavirus hot spot.
For guidance on your particular situation, call our office today.
