Court Talk
by Clifford E. Fried
Chee v. Amanda Goldt Property Management
Property owners once bought insurance to protect against liability for slips and falls. Today, insurance is purchased to protect against attempted wrongful evictions, criminal activity of third parties and even attacks by sexual predators residing at the premises. But dog attacks are an even more common source of liability for property owners.
In Chee v. Amanda Goldt Property Management, the landlord rented a condominium unit to a tenant with a Jack Russell terrier—not a particularly vicious dog unless you happen to be a cat or rodent. The tenant lived next door to Lila Chee, a 71-year-old woman. One day, the dog ran out its apartment and jumped on Chee, causing her to fall and sustain numerous injuries.
Chee sued the dog’s owner and the landlord that rented to the dog owner. The lawsuit claimed that the building owner breached the duty of care by allowing a dangerous condition to exist on the property, i.e. the dog. It was further alleged that the dog’s characteristics and traits posed a risk of harm to persons in the common areas, and that the building owner had a duty to inspect and investigate the characteristics of a dog kept on the premises by the tenant.
The landlord moved for summary judgment, arguing that absent actual knowledge that the dog was dangerous, the landlord owed no duty to Chee to protect her from it, or to inspect or investigate whether the dog had dangerous propensities. The landlord claimed to lack such knowledge. The trial court granted summary judgment in favor of the landlord.
On appeal, the court pointed out that it is well established that a landlord does not owe a duty of care to protect a third party from his or her tenant’s dog unless the landlord has actual knowledge of the dog’s dangerous propensities, and the ability to control or prevent the harm. Since the landlord in this case lacked actual knowledge of the dog being dangerous, there could be no liability.
The First District Court of Appeal explained the importance of the requirement that the landlord have actual knowledge rather than mere constructive knowledge. It said that because the harboring of pets is such an important part of our way of life and because the exclusive possession of rented premises is normally vested in the tenant, actual knowledge is required.
The court also said a landlord is under no duty to inspect the rented premises for the purpose of discovering the existence of a tenant’s dangerous animal. According to case law, only when a landlord has actual knowledge of the dangerous animal, coupled with the right to have it removed from the premises, does a duty of care arise. But does a landlord in a rent- and eviction-control city have the right to remove a dog from the premises? When would a landlord have the right to remove a dog?
In the infamous San Francisco dog mauling case, could Dianne Whipple’s landlord have removed the presa canarios before they killed? The dogs’ owners in that case had a rental agreement that permitted dogs. San Francisco requires just cause to evict. Even if Whipple’s landlord knew that the dogs were dangerous, he didn’t have just cause to evict. As a point of fact, there was no evidence presented in the dog owners’ criminal trial that the landlord knew the dogs were dangerous.
One could argue that guns and knives are dangerous. But a San Francisco landlord couldn’t evict a tenant for merely possessing guns and knives. Simply possessing dangerous things isn’t just cause for eviction. Unfortunately, until the guns or knives are used in a violent manner, the landlord has no grounds to evict. Likewise, until a dog bites, or does something else to injure a person, there is no way to evict the dog’s owner.
Chee also sued her landlord under a nuisance liability theory. Nuisance liability arises from a violation of a duty to another that interferes with the free use and enjoyment of his or her property. The court said that as a general rule, a landlord isn’t liable for a nuisance created by his tenant after the premises are rented.
The court’s holding and analysis regarding landlord liability for nuisance is important to property owners, especially in San Francisco, because municipalities are suing property owners with greater frequency for allowing drug nuisances to exist. Unless a landlord participates in the drug nuisance activity or permits it, there can be no liability for nuisance. The question for the courts is whether or not evicting a tenant for drug nuisance activity is the same as the landlord permitting the nuisance. There is some language in the Chee decision indicating that courts will look for a landlord that actually allows the nuisance activity.
Fountain Management, LLC v. Johnson
While this column usually covers published decisions because of their precedent-setting value, unpublished cases are also discussed on occasion. Unpublished cases can be of value to practicing lawyers and their clients in developing novel new claims and defenses in the trial courts. Also, once a trial court starts ruling a certain way on a landlord-tenant issue, a standard is established without a published decision. To this day, local courts are issuing the same rulings on particular issues based upon unpublished decisions.
Fountain Management, LLC v. Johnson is an unpublished decision out of the Los Angeles Superior Court that deals with the just cause necessary to evict a Section 8 tenant. Los Angeles has enacted an eviction-control law known as the Los Angeles Rent Stabilization Ordinance. This case holds that where a landlord has proper grounds to terminate a Section 8 tenancy under federal law, such a termination isn’t a violation of LARSO.
In San Francisco, Section 8 tenancies are subject to the Residential Rent Stabilization and Arbitration Ordinance. In other words, most San Francisco landlords must have one of the permitted grounds for eviction before terminating a Section 8 tenancy. So, while not binding on San Francisco courts, the ruling in Fountain Management, LLC can provide some guidance to other Bay Area landlords making an argument in court.
Fountain Management, LLC terminated a Section 8 tenant because it wanted a greater rent from the unit in question. The landlord argued that federal regulation permitted a landlord to recover possession from a Section 8 tenant in order to obtain a better return on its investment by seeking a more favorable lease. The landlord did this by invoking the “other good cause” grounds for eviction in federal law. The tenant countered by claiming that it was never the intent of the U.S. Congress to impinge on local authority’s ability to control rents or limit evictions.
The trial court tackled the issue presented by pointing out the different approaches between LARSO and the federal Section 8 voucher program. LARSO, like other eviction-control laws in California, requires landlords to keep rents artificially below market rents and forbids the eviction of tenants paying below market rent except in very limited circumstances. Landlords who violate LARSO are penalized.
The Section 8 voucher program provides landlords with financial rewards so that units can be rented at or near market value. At the same time, the tenants’ share of the total rent is far below market. The Section 8 system is premised on the notion that if the government provides adequate subsidies, better housing will result and landlords may make an appropriate profit.
The trial court said that because the Section 8 program was designed to better the landlord’s economic situation, local government can’t frustrate this purpose by eliminating the specific grounds for termination of tenancy in the Section 8 regulation’s other good cause provision. It held that to do so would lock landlords into endless leases, falling further below in market value each year.
The trial court used a preemption analysis to show that the provisions of LARSO conflicted with the provisions of the Section 8 program and held that a legitimate business or economic reason under 24 CFR 982.310(d) is a proper ground to terminate a tenancy and is not a violation of the local eviction control law. The judge then invited an appeal of his decision for the sake of future certainty in the law. We may actually see a published decision in this case some day.
The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of SFAA or SF Apartment Magazine. The information within this article is general in nature. Consult an attorney for any specific problem. Clifford E. Fried is a partner with Wiegel & Fried, LLP, 415-552-8230. Copyright © 2007, Wiegel & Fried, LLP. All rights reserved.