Q: I manage a single-family home for an out-of-state owner. A branch from a tree on the front lawn fell on the tenant’s car, which was properly parked in the driveway. The owner’s insurance carrier refused to pay for the damage to the tenant’s car, claiming no damage was done to the actual home. So, the tenant had the work done on her own, and filed a claim with her car insurance company, who paid the bill ($3,000) except for the $1,000 deductible. She wants the owner to cover the deductible, and I agree. What do you think? –Will G.

A: At the bottom of all this is whether the owner is responsible for the damage to the tenant’s car. Even if the tree was well-trimmed, and the branch broke off unexpectedly, the answer is yes. Most of the time, when something on the rental property over which the landlord has control — be it the front steps or a tree — damages a tenant’s property or injures a tenant doing something she has a right to do, the landlord will be responsible. That’s why business-savvy landlords and all property owners have liability insurance, which kicks in when people on their property (such as tenants, guests, prospects and deliverypersons) suffer accidental injury or damage. If the owner doesn’t have liability insurance, the owner will be personally responsible.

You might check with your owner about what kinds of insurance he carries. It sounds like he may have only property insurance (which covers only damage to the structure), but no liability coverage. If that’s so, but if he does have an ounce of sense, he’ll pay the tenant for the $1,000 deductible and pray that it all ends there. That’s because the tenant’s car insurance company has the right to go after a third party (in this case, the owner) who causes damage to its insured that the company has paid for. The landlord could find himself being sued by the car insurance company for $2,000, and another $1,000 by the tenant if he’s been stubborn enough to refuse to cover her deductible.

Q: I own a rental that I purchased four years ago from someone who bought it from a bank in a foreclosure sale. One of the tenants is moving, after living in the unit for nine years, and wants me to return her security deposit, which she claims she paid to the defaulting owner. None of my sales papers mentioned a security deposit. Who is responsible for returning the security deposit to the tenant? –Gwen G.

A: Your tenant is entitled to the return of her security deposit from her current landlord (minus legitimate deductions, of course). Assuming she can prove that she did in fact pay a deposit to the owner from whom she initially rented, you’ll have to handle the refund, even though it’s news to you.

When you purchased the property, it was up to you to find out whether the seller was holding tenants’ security deposits. Had you done so, you and the seller could have either refunded the deposits (giving you the option of collecting them again, as the new owner), or transferred the deposits to you. Many states have laws requiring buyers and sellers to do one or the other, and provide that the current owners must refund the deposits even if they never received them. Even in states that haven’t addressed the issue, it’s hard to imagine a judge not siding with a tenant who, after all, was in no position to make sure her deposit was transferred properly.

You may have some recourse against your seller, however. If you can prove that the seller held deposits that he did not transfer to you, you can sue that seller in small claims court on a theory of fraud. Now suppose the seller (or even the bank) claims ignorance of any deposits? It’s possible that you’ll need to reach all the way back to the defaulting owner. If you can prove that the original owner never returned the deposits nor transferred them to the bank upon foreclosure, you’ll have a shot.

Q: I’ve experienced a blatant case of racial discrimination, but my lawyer says I’ve got no case! Here’s what happened: I applied for one of the units in a three-unit apartment building, but the landlord turned me away because I’m black (he said he wasn’t comfortable renting to people “of my race.”) The guy told me he was within his rights because he lives on the property. I asked the lawyer who helped me with my car accident case last year, and he said that neither state law nor the federal Fair Housing Act will protect me in this situation. Can this be right? –Jeremy N.

A: Send that lawyer back to law school! It is true that the federal Fair Housing Act exempts owners in the “Mrs. Murphy” situation, in which the owner lives on a rental property that has four or fewer units. And it may be that you live in one of the states that have not stepped in with their own anti-discrimination laws that cover the Mrs. Murphy building. Even if you live in such a state, an old but still frisky federal law, the 1866 Civil Rights Act, does cover your situation, and it applies to landlords in every state. The Supreme Court has held that the Civil Rights Act applies to discrimination in all leasing situations, and that it protects Hispanics, blacks and virtually all dark-skinned persons. So while that landlord might get away with excluding women or persons of a certain religion, for example, he cannot turn you away because you’re black.

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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