Don't assume landlord's insurance covers all damage

Rent it Right

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Mar. 22, 2012

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Rent it Right

Janet Portman
Inman News®

Q: I read a recent New York Times article about renters insurance, which quoted an insurance professional who warned that if a tenant's possessions are damaged, "the landlord's policy is not going to cover your damages." But the article says there's "an exception to that ... if the landlord was 'aware of a prior hazardous condition, failed to correct it in a reasonable time frame, and your property was damaged.'"

I'm confused -- as a landlord, am I insuring my tenant's property if it's damaged as a result of my carelessness? --Paul B.

A: Your confusion is understandable. In a sense, this insurance professional was right: Tenants in this situation might get some money from the landlord's carrier. But it's not correct to conclude that when landlord carelessness is involved, the landlord's policy will "cover" the tenant. Once you see how these claims work, you'll see what I mean.

Here's a typical scenario:

Suppose Sam's computer, which he left on the kitchen floor while it was recharging, is ruined when the pipes burst under the kitchen sink, causing a flood. Sam's landlord had supposedly fixed the leak just that day, but a plumber later confirms that the landlord did a shoddy job. It's pretty clear that the landlord was careless.

Sam's landlord has property insurance, but that insurance covers only the landlord's property; it wouldn't extend to Sam's computer. The landlord also has liability insurance, which covers the landlord when his carelessness results in damages or injury.

If Sam the tenant has renters insurance ...

Here's how things would play out if Sam has his own policy. Sam takes pictures of the floor and his computer, gets a statement from a computer repair shop and the plumber, and submits the claim to his insurance carrier. The company pays Sam; most companies do not dispute these claims unless they have solid reasons to suspect fraud. Sam buys another computer. (Hopefully, he's got "replacement value," not "actual cash value" coverage, which results in enough money to cover the total cost of a new computer.) Sam's carrier can go after the landlord (known as "subrogation") to get reimbursed, but because this is a small claim, it probably won't. Even if it did, Sam wouldn't be involved.

If Sam has no renters insurance ...

In the absence of his own policy, Sam wants the landlord to pay for the results of his shoddy repair. He sends documentation of the damage to the landlord, demanding reimbursement. Sam cannot make a claim on the landlord's property policy, because that policy did not insure Sam's stuff.

The landlord then has three options: Pay Sam; refer the claim to his carrier, which will treat it as a claim against the landlord's liability policy; or ignore Sam. If he doesn't pay voluntarily but refers the claim, the carrier will get in touch with Sam and probably settle. But if he simply ignores Sam, Sam will have to sue the landlord to get his money. Even then, the landlord is under no obligation to involve his insurance company, and may choose not to in order to keep his record clean.

If Sam wins in small claims court, he will get a judgment that he will have to collect. But if the landlord won't pay, he can't just present the judgment to the landlord's insurance company. Instead, he will have to attach the landlord's bank account or garnish his wages.

So you see, Sam may eventually get his money from the landlord's carrier, but only if the landlord chooses to involve the insurance company, and only if they settle or Sam wins in court. That's a far cry from saying that the landlord's insurance will "cover" damage to the tenant's property caused by the landlord's carelessness. The bottom line: It's a lot easier to have your own coverage and let the insurance companies sort it out.

Q: The lease I've been asked to sign has an odd clause concerning attorney's fees and costs in case there's a lawsuit. It says that the loser will pay the winner, but only up to $1,500. Is this legal? --Geoff S.

A: Lawsuits between landlords and tenants can arise over the meaning and implementation of the lease, or over issues that aren't covered by the lease. A lawsuit over the landlord's retention of the security deposit is an example of the first kind; a tenant's claim that the landlord charged her more rent because of her race is an example of the second.

Whether your landlord's attempt to limit the loser's liability for court costs and fees will hold up depends on the kind of lawsuit at issue, and on what your state law has to say about the matter. Let's take a look at each situation.

Lawsuits over the lease

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