Dealing With The Courts

Written by Stephen C. Duringer | 03 May 2012

Q: With recent heavy rains, my apartments have experienced some roof leaks. Most of the leaks are minor, but there is a pretty big leak in one apartment. This is of great concern to me, because the roof is less than five years old, and has never leaked before. I even had it inspected prior to the rainy season by a competent roof inspector. The trouble is that the water leaked into one of my resident's unit, and apparently caused a substantial amount of damage. The resident claimed that his stereo equipment, television, computer, furniture and clothing were ruined. He even has pictures of the water dripping from the ceiling onto his stereo and television set. The resident is threatening to sue me if I don't reimburse him for his losses. What should I do? Am I responsible for the resident's personal property losses?

A: An owner is not generally liable for damage caused to the personal property of a tenant, absent negligence on the part of the owner or his agents. Provided a licensed roofing contractor performed the roof installation, you maintained the roof adequately, had it inspected on a regular basis, and were not on notice of any prior problems, you should not be responsible for damage to the resident's personal property.

Additionally, the tenant has an obligation to mitigate his damages when faced with a leaking roof. This basically means that if the leak was coming slowly through the roof, and the tenant knew about it, then he should have taken some measures to minimize the damage to his personal property. The fact that the resident had time to grab a camera and take pictures of the dripping water while letting his television set, stereo and other belongings get soaked, suggests the resident failed to mitigate his damages. In simple terms, the tenant should have moved his stuff and grabbed a bucket, rather than watch it drip.

Q: Several of my older rental agreements provide discounts to my residents of $50 if they pay their rent on time. Most state that their rent is $1,200, but if they pay their rent on the first, they can deduct $50. My question is, which amount do I put on the three-day notice to pay rent or quit, the $1,200 or the $1,150?

A: Most courts would require that the three-day notice only demand the $1,150. Most courts would consider the additional $50 a penalty or a disguised late charge. The courts would reach this conclusion based on the terms of your agreement. If the due date, per the agreement, is the first, then the proper amount to demand is that amount that was required to be paid on the first, specifically the $1,200. However, an incentive that encourages early payment, specifically payment before the first, would survive because the amount due on the first would be $1,200, but if paid prior to the first, only $1,150.