The Landlord’s Liability to Child Tenants

THE LANDLORD’S STANDARD DUTY: ORDINARY SKILL AND CARE

Generally speaking, California landlords have a statutory duty to use “ordinary care or skill” in managing and maintaining rental properties. Normally this means ensuring that rental premises are free of known defects at the start of a new tenancy, and repairing defects and dangerous conditions within a reasonable time of learning about their existence. Landlords are usually not considered responsible for a failure to repair or prevent dangerous conditions unless the landlord knew (or should have known) that the condition existed.

Negligence liability may apply if the landlord fails to use “due care” and thereby breaches the statutory duty owed to the tenants. Other, more specific, duties may also create negligence liability for landlords in fact-specific circumstances.

As a general rule, landlords are liable to tenants or other people who suffer injuries as a result of the landlord’s failure to exercise due care in maintaining and repairing rental property. Exceptions and defenses do exist, especially where the plaintiff (or other injured party) caused or exacerbated the injury through the plaintiff’s willful or wantonly careless actions.

LANDLORDS OWE A HIGHER DEGREE OF CARE TO TENANTS WHO ARE MINORS

The law imposes more significant duties in many cases involving minor children, primarily because the law (and the legislature) recognize that children often lack the capacity to understand and avoid dangerous conditions. For this reason, the law says that adults are often more obligated to exercise care where minors are involved.

Landlords have an increased obligation to remove actual or potentially hazardous conditions on property where minor children will either be tenants of or regular entrants upon the relevant property. This includes situations where children are likely to trespass on property (for example, in the case of “attractive nuisances” where children are likely to enter property to explore or play).

The landlord’s increased duty includes the obligation to repair and maintain the property in a manner which eliminates and “guards against” foreseeable dangers, taking into account the “known propensity of children to [trespass].” (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 C4th 1138, 1145–1146)

However, the higher duty of care does not require landlords to ensure the safety of children who live or enter upon the rental property. Not all accidents are the landlord’s responsibility, and the landlord’s duty of care does not generally require “childproofing” or rendering rental premises “completely safe” (a condition which may be impossible, as well as unreasonable).