Applying 'law of fixtures' to rentals

Rent it Right

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Jan. 14, 2011

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During that time, you as the landlord had ample and legal opportunity to make sure that your property was being used properly (in all states, tenants must exercise a reasonable level of housekeeping, so as not to damage the premises). Even in states that closely guard tenants' privacy (making it illegal, for instance, for landlords to pop in unannounced, just to check things over), landlords can always schedule visits to evaluate the need for maintenance.

As long as the landlord follows state-mandated rules on giving notice, and schedules the visits for reasonable days and times, tenants must let the landlord enter or face termination. After all, if landlords are to comply with their legal duty to maintain "fit and habitable" housing, they need an opportunity to see the rental and decide whether preventative maintenance, at the very least, is in order.

Your insurance carrier is likely to point to your failure to keep even minimal tabs on your property, and might liken it to a failure to deal with a leaky pipe. A water leak that lasts over time, eventually causing substantial damage, is not a "sudden and unexpected" event that will trigger coverage -- even if you didn't know about it. In other words, you can't look to your carrier when damage results from your failure to handle routine repairs and maintenance.

Before giving up on your insurance policy, however, you might try that long-shot theory mentioned at the start. Your property policy provides coverage for the peril of vandalism, which is the willful or ignorant destruction of property. You could argue that your tenant's hoarding tenant's behavior was both, and therefore should be covered by the policy. Now, your insurance company may argue that there was no destruction, because all you need to do is clean (albeit to an extreme degree). But in insurance lingo, destruction means "to render useless for its intended purpose" -- either permanently or for a short time.

In addition, vandalism need not be sudden or accidental, as with water and other maintenance problems. If you try this avenue and get nowhere, consider questioning your company's denial, possibly with your state's department of insurance.

Whether you win or lose this argument, there's a lesson to be learned here: Even if your tenant regularly pays rent and makes no maintenance demands, don't neglect to visit the property at reasonable and legal intervals, to see for yourself that it's being used properly.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord's Legal Guide" and "Every Tenant's Legal Guide." She can be reached at janet@inman.com.

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