Right Timing for Legal Action Against Neighbor Construction Negligence We own a multi-family rental row-home property in a US city. An abutting row-home was being gutted and renovated. In the process, our upper back deck and roof were used without our permission to work on their project. Their materials were strewn all over, and a piece of plastic ended up covering the gutter on the roof. There was very heavy rain, and massive amounts of water came in our property causing severe damage. Even though remediation came swiftly, we had tenants abandon their units and threatening to sue for frivolous concepts. Insurance has been good so far, but we see that we are already facing very likely income loss as a consequence of the demands from the tenants for lease termination and return of deposit; possible delays in finding new occupants since we can't show the property; multiple trips to the city with more and more problems surfacing, etc. We don't want to necessarily get entangled in a legal battle, but if needed we want to do it timely and properly. So the question is, When is the best moment to seek legal counseling regarding any losses not covered by insurance? For instance, we feel like we have an open running tab, and until things come to a close we don't know what the ultimate financial damage will be. Also, What type of lawyer specializes in this types of issues?
As soon as possible. Liability There is no contract here so you would be relying on the tort of negligence and/or trespass. If you have suffered damage from somebody else's negligence then they are liable for your loss. Part of the problem that you face is you need to determine exactly who was potentially negligent. It probably isn't your neighbour! It is quite likely that your neighbour was using a contractor; a contractor is not an agent and so your neighbour has not been negligent, the contractor has. If you were to sue your neighbour in those circumstances you would lose. You need to take steps now to find out exactly who the person was who caused the damage - that's the person you would need to sue. To win a negligence claim, you need to prove that the defendant: had a duty to the plaintiff, breached that duty by failing to conform to the required standard of conduct (generally the standard of a reasonable person), the negligent conduct was, in law, the cause of the harm to the plaintiff, and the plaintiff was, in fact, harmed or damaged. If the facts are as you say: They probably have a duty, They probably failed in that duty, See below, You have clearly suffered harm or damage. Types of loss or damage The treatment of loss or damage under the law depends on what type of loss it is: Direct loss includes the repair and rehabilitation of the property - this would generally be recoverable, i.e. legally it is a cause of harm. Consequential loss includes the loss of rental income during the period that the property is unavailable. Alternatively, a court may consider that the loss is the cost of you providing alternative accommodation to the tenant if this was an obligation on you; this could be more or less than the rent. It would also include relocation costs etc. This is also generally recoverable. Pure economic loss would include loss of earnings if the tenant terminated the lease and you were unable to find a replacement or were forced to lower the rent as well as any advertising or agent's costs. While it is possible to recover this, it is quite likely that this would be considered unforeseeable and therefore not a legal cause of harm. The legal reasoning is that the loss (tenant terminating the lease) is too far removed from the proximate cause (damage to the unit) to hold the defendant responsible for it. You have already indicated that the tenant is trying to use the circumstances to their advantage; this is not something that could have been foreseen. Duty to mitigate loss You have a duty to mitigate the loss caused by the negligence. This would normally include ensuring that repairs were carried out in the most time and cost-efficient way possible. The defendant is only liable for reasonable costs; not actual costs. Insurance If a third party is liable for the loss, then they are liable for the loss irrespective of if it is covered by your insurance. Your insurance company can sue in your name to recover whatever they have lost; while they can, they will only if they believe it is commercially worthwhile. You need to talk to your insurer to determine what they will cover and what they won't and if they are going to seek to recover and what they will do if you seek to recover - they may choose to take the lead and tack your stuff on the back.
&quot;Reasonableness&quot; is a deliberately vague and flexible term. It does not -- and is not meant to -- have any precise definition. Instead, it is meant to be highly case specific. A &quot;reasonable&quot; time to repair will therefore be longer or shorter, depending on the circumstances. If you want a scratch in your countertop repaired, a &quot;reasonable&quot; time is probably a lot longer than if you want the plumbing repaired. And a reasonable time to repair the plumbing may itself vary with the availability of vendors, supplies, etc. Likewise with the air conditioning. It's probably a lot more reasonable to wait three months to fix the AC if it breaks down in December than in if it breaks down in the summer, which it sounds like is what's happened to you. Based on the timing, I'd feel very comfortable arguing that the leasing company has breached the agreement. The &quot;reasonableness&quot; standard is meant to give the landlord adequate time to respond and get the job done properly, but it can't be stretched indefinitely as seems to be happening here, to the point where you have essentially lost the entire benefit of air conditioning by sitting in a hot apartment for the entirety of the summer. New York City has pretty strong tenant-protection laws, so I suspect that you would have the option of hiring someone to handle the repairs yourself and then deducting your costs from the rent you owe.
The landlord is not free of liability risks. In California, everybody is responsible for injury brought about by lack of ordinary care or skill in management of his or her property or person. This applies to landlords, falling under Business Proprietor’s Liability for the Criminal Conduct of Others. Therefore the landlord must use reasonable care to protect tenants and guests from another person's harmful conduct on the property if the conduct can be can reasonably anticipated. The duty is towards anyone on tenants and guests alike. To figure out whether the landlord has breached his duty of care, the courts will "balance" the probability of harm to the tenant with the burden of the duty imposed on the landlord to prevent or mitigate the risk of harm, see Vasquez v. Residential Investments, Inc., 118 Cal. App. 4th 269. In that instance, the landlord failed to replace a missing pane of glass on the front door, contributing to the tenant's murder, for which the landlord was held liable (wrongful death). This ruling has extensive discussion of that balancing act. The crucial question is, how did the assault happen, and how do the landlords actions relate to the assault? The answer may be different in other jurisdictions. In the modified scenario, liability would hinge on scenario details (I'll continue to assume California). The factual question is whether in light of the background check, the assault was foreseeable, and to what extent it was preventable – what did the landlord do wrong? For instance, if the criminal history check revealed a number of arrests for assault in the state and the check was limited to CA (the new tenant moved to CA just a year ago), and if the assault was in old-tenant's room which had no lock due to landlord indifference, then the landlord is more likely to be held liable (he could have fixed the lock for a few dollars, or paid for a better criminal check). On the other hand, if a thorough criminal check reveals no arrests or complaints for anything, anywhere, and the assault happened in the common area while talking politics, there is no reasonable course of action that the landlord could have undertaken to prevent the assault (hiring 24 hour guards would not be reasonable, in this scenario). In Vasquez, the issue came down to the landlord's failure to implement a cheap fix on the front door. In a third version of your scenario, suppose that there was some evidence of past violent behavior, but the only fault that could be assigned to the landlord is the fact of renting to the new tenant. Does a landlord have a duty to deny housing to a person with a past record of violent behavior? It is legal in California to do background checks and deny a prospective tenant a lease based on existing criminal history, as long as the criteria are applied consistently (not discriminatorily), and not in a jurisdiction where criminal checks are illegal (Oakland). There is a non-fantasy scenario where that includes "the US", given a guidance from HUD, based on a disparate impact analysis. HUD says that a housing provider excluding applicants with arrest but no conviction "cannot satisfy its burden of showing that such policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest". If there are convictions and there is a blanket no-convict policy, the provider must still be able to prove that such policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest. A housing provider that imposes a blanket prohibition on any personw ith any conviction record –no matter when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then – will be unable to meet this burden If it is illegal to discriminate on the basis of past convictions, a landlord cannot be held liable for obeying the law. In short, "it depends (on minute details and whether the plaintiff's lawyer makes the necessary arguments): ask your attorney".
This likely comes down to contract law (note: I'm not a lawyer; this isn't legal advice). If his rental contract is not with you, you'll need to refer this to the property owner's representative. I don't see why just sharing the house would give tenants any eviction rights over other tenants. Even if you are the owner (cf “my house”), it would be unusual for independent tenants to be party to each other’s rental contracts. The other tenants are irrelevant to any eviction attempt, except perhaps as witnesses in court.
The one answerable question regards the legality of taking the damages out of the security deposit. Consulting the Ohio landlord-tenant law, the tenant has various obligations including to Dispose of all rubbish, garbage, and other waste in a clean, safe, and sanitary manner ... Comply with the requirements imposed on tenants by all applicable state and local housing, health, and safety codes The citation should indicate the specific violation, but dumping trash in the street is a health violation. The act that says that if the tenant violates his obligation, the landlord may recover any actual damages that result from the violation together with reasonable attorney's fees. Causing a landlord to be saddled with a fine is actual damage. It would be pointless to contest the fine with the city, unless you are alleging that some vandal drove by and dumped trash in the road near your apartment. (Even then, unless you already reported supposed illegal dumping to the sheriff, it is unlikely that you wouldn't be held responsible).
You've signed a lease, which is legally binding, so you need to determine 1) what exactly was stated in the rental offer by the property manager and/or website about the available apartments, if a certain apartment was guaranteed, and if one could be substituted for another by the manager due to availability and other factors; and 2) you need to find out exactly what the lease says that you have signed, i.e. if there are terms that allow you to break the lease without penalty, such as misrepresentation by the landlord or property manager. If it turns out the manager did misrepresent the rental property, you may be able to break the lease. If the property manager stated at some point that the apartment represented by the photos may not be the actual property, you may be out of luck. Before confronting the property manager again, gather up all your emails, documents, photos and any other evidence - such as written descriptions of any phone calls and talks you had with the property manager before and after the move in - and talk to either a legal aid organization that specializes in rental aid (Google for your area in CO), or a lawyer who deals in leases and offers free initial consultations. Other than that, this site is not for specific legal advice, i.e. if you should sue the landlord to break the lease and move; that's your judgement and the advice of any legal representation.
However, he wants a new security deposit and a month's rent for the time we will use it in March, claiming that the sale process makes us new tenants. What are the legal rights and legal obligations of an estate in a month-to-month rental situation? The estate is just starting the probate process, and I am unclear on whether the landlord is a "traditional" creditor or in a unique situation since the money he is owed for rent continues to accrue after death. The decedent's security deposit, less valid deductions, is property of the estate, so if the landlord takes a second security deposit he is double dipping. Generally speaking, after someone dies, money judgments that have not been reduced to judgment liens, and unsecured debts (i.e. debts not supported by collateral) only have a right to be paid via submission of a claim to the probate estate in the probate process with claims made paid according to a priority schedule set forth in the probate code. But, generally speaking, death does not impair the property rights of third parties, so the fact that a debtor's estate is in probate is usually not a basis upon which a foreclosure or repossession of collateral for a default on a secured debt, or an eviction due to the termination of a lease, may be postponed while the probate case runs its course. Probate does not have the equivalent of the "automatic stay" in bankruptcy that prevents any creditors, secured or unsecured, from engaging in any collection activity against an estate, and probate estates are not allowed to file for bankruptcy either. If you really wanted to play hardball and only needed the apartment for a few days in March, the estate could simply continue to occupy it for that period of time and they pay the landlord the extra month's rent but not the additional security deposit when it was done. The landlord can't begin a foreclosure proceeding until there is a default which can't happen sooner than the last day of February. Even if the landlord is really on his toes, the landlord will be hard pressed to get a notice to vacate served on the estate and then to prepare and serve an eviction lawsuit on the estate and get that case in front of a judge before the estate will be ready to move out anyway. The estate might incur some attorneys' fees in the process if it did that, but the attorneys' fees would be an unsecured claim of the landlord that would have to be collected through the claims process in the probate proceeding which is usually a fairly favorable forum for the estate, instead of the usual court where small landlord-tenant disputes are handled. The probate estate could simply deny his claim for attorneys' fees and then, if the landlord wanted them after making a claim, the landlord would have to bring a lawsuit on fairly tight deadlines in the probate court to have the disallowance of the claim overturned. If you wanted to be even more aggressive, rather than paying the last month's rent, the estate could just holdover into March without paying rent or a new security deposit (vacating before the eviction process can run its course), effectively forcing the landlord to use the security deposit for March rent, and then forcing the landlord to use the probate claims process for both damages to the property claimed and for an attorneys' fees. If the estate is insolvent, or if the claim wasn't filed by the landlord (who may not even know that it is necessary to file a claim in probate) within the short deadline for probate claims arising after death, those expenses just wouldn't get paid at all.
Is it worth it to contact a lawyer? No. The amount at issue indicates that the matter would have to be litigated in Small Claims court, where typically parties are not allowed to be represented by a lawyer. Furthermore, litigating in Small Claims court will give you some exposure to judicial proceedings. Being able to advance your legal arguments in court is useful, and this seems to be a great occasion to gain experience of that sort. The rental company's uncooperative behavior is unreasonable and can forfeit its entitlement to at least a sizeable portion of its actual expense. In many jurisdictions, the legislation provides treble damages in claims of fraud. Although claims of fraud and breach of contract oftentimes overlap, your entitlement to treble damages is not something to rule out. At the outset, the company's initial promise to give you the final statement most likely supports a finding of reasonable reliance, one of the prima facie elements of fraud. It is unclear whether the rental company made the aforementioned promise in writing. For evidentiary purposes, make sure that all your subsequent interactions with the rental company are in writing. That will make it harder for the company to disavow its verbal representations.