Must-knows before suing over lead dust

February 17th, 2011 12:46pm
Rent it Right

Janet Portman
Inman News™

Q: After one of our children received a routine pediatric exam, we learned to our horror that the level of lead in her blood is dangerously high. We think that the cause is lead dust from our former rented home (we recently moved to our own new house). We also think that the owner knew about the problem but did nothing about it and never told us.

Since our move, the owner lost the home to foreclosure, so it's now owned by the bank. If we file a lawsuit over our child's injury, whom do we sue: the former owner or the current owner? --Tim G.

A: You're doubtless hoping that you can sue the current owner, the bank, because it's clearly in a better position to pay a settlement or judgment, if you prevail in a lawsuit, than the defaulting prior owner. And on some level, it seems appropriate to sue the bank, because the bank owns the property that injured your child. But I don't think you'll be able to do that.

To understand why, you need to think about the kind of lawsuit you'd be filing. You (or more precisely, your daughter) would be claiming that she was injured as a result of the negligence or recklessness of the former owner. Negligence is simple carelessness; recklessness, sometimes known as gross negligence, is behavior that's extremely risky and wanton.

If the former owner knew about the presence of lead dust and failed to even warn you, he may have passed beyond mere carelessness to recklessness. When that happens, the amount of money an injured plaintiff can demand generally goes way up, in the form of extra damages designed to punish the wrongdoer for his wantonness.

In legal lingo, this is a "tort claim," which is just a fancy way of saying that you're claiming that you've been injured by someone else's wrongful behavior ("tort" is from the French word that means wrong). A tort claim is critically different than a claim based on breach of contract. One basic difference between the two types of claims is that a tort claim is personal to the wrongdoer, but responsibility for a contractual misstep can be passed on to whomever takes over the contract.

There are many situations when you would indeed look to the current owner of rental property for actions taken or promises made by a former owner. Any new owner steps into the shoes of the former owner as far as contractual claims or promises are concerned (that's why, for instance, a new owner generally has to honor any existing leases signed by the seller).

So, for example, if the former owner had promised you a new oven in exchange for renewing your lease, the new owner would be bound by that promise because it was an oral contract.

If your former landlord failed to tell you that there was lead-based dust on the premises, and your daughter has been harmed as a result, then the landlord has arguably been negligent. He may even have been grossly negligent, if he knew or should have known about the hazard.

These are tort claims, which will stick with him even after he's sold the property. It's really no different than injuries caused in a car accident; the fact that the careless driver's car was totaled and now belongs to the junkyard doesn't mean that the injured person can no longer sue the driver -- or that the injured person can sue the junkyard.

Given the seriousness of what your daughter is dealing with (not to mention its expense), you should definitely consult with an attorney. Don't assume that the former owner, even though he lost the property at foreclosure, is a pauper. Even if he is broke right now, he might not remain so forever (judgments last for many years). A creative lawyer might also think of a way to cast your claim as a contract claim, which would answer your wish for a defendant with deep pockets (the bank).

Q: I rent my single-family home to a woman and her two kids. Her boyfriend has been living there for some time, though he's not on the lease and never paid me any rent. When they moved out, they owed back rent. I think he's the only one with a job -- can I get back rent from him? --Beth M.

A: In most states, residents who live on the property with the knowledge and consent of the landlord attain the status of tenants by operation of law. The fact that you never explicitly placed him on the lease, or accepted rent directly from him, is immaterial. Once you learned that he was living there and did nothing to challenge his presence, you implicitly agreed to his permanent presence.

Great, you say -- he's a tenant, and therefore responsible for the rent. Well, not so fast. It is true that he would have had tenant status and rights if, for example, he and your tenant were still on the property and you had to evict them for nonpayment of rent -- you'd need to serve not only your tenant, but other residents (like the boyfriend) who might have a claim to rightful possession.

But that's not what's happening now. Your residents are gone, and you'll need to use small claims court to collect back rent.

And here's what's going to happen in court, if your tenant and her companion have thought creatively. You'll name the boyfriend, as well as the tenant, as defendants, but the boyfriend will protest that he was not, in fact, a tenant, but simply a long-term guest who had no intention of earning tenant rights, let alone responsibilities.

And in truth, there's nothing illegal about being a long-term guest. The legal rule that earns an unauthorized resident the status of a tenant when the landlord seeks to evict might not work in reverse: In other words, it might not stick the unauthorized resident with tenant status if he doesn't want it.

Your question illustrates the folly of letting a long-term guest remain on the property without making him a full-fledged co-tenant, in writing, on the lease. In the future, make sure that any newcomers who appear to be long-term guests receive your permission (after you've screened them) to live there.

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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