Q: I had quite a shock when I entered my tenant’s apartment, at his request, to fix the leaking kitchen sink. Usually I encounter damage or a mess, but this was way worse: On the kitchen table were photos of naked children in suggestive poses and situations. It looks like pornography to me, but I’m the first to say, I’m no lawyer. Should I report this? What if I report it and I’m wrong — can I be sued? –Andrew F.

Q: I had quite a shock when I entered my tenant’s apartment, at his request, to fix the leaking kitchen sink. Usually I encounter damage or a mess, but this was way worse: On the kitchen table were photos of naked children in suggestive poses and situations. It looks like pornography to me, but I’m the first to say, I’m no lawyer. Should I report this? What if I report it and I’m wrong — can I be sued? –Andrew F.

A: You’re asking a couple of tough questions — whether you have a legal duty to contact the police, and whether you can be successfully sued by your tenant for doing so. Let’s look at each issue, assuming for the moment that the photos were pornographic images of children (more about why that’s an important assumption in a minute).

A private person generally has no legal duty to report evidence of a crime. There may be strong practical and moral reasons to report crime, but that’s not the same as a legal duty. If you go beyond simply not reporting a crime and take active steps to conceal or prevent disclosure of a felony, however, you’re risking prosecution for an age-old crime known as "misprision of a felony." Still on the books at 18 United States Code § 4 (and in many states’ criminal codes too), this crime requires someone, not the perpetrator of the crime, to have knowledge of the commission of a felony, and to have taken affirmative steps to conceal it. You probably don’t have much to fear because you haven’t done anything beyond remaining silent (you’ve taken no "affirmative steps").

Sharp readers are no doubt wondering how this answer squares with a landlord’s duty, in many states, to stop criminal activity on the premises and evict tenants for certain activities, such as drug dealing. Laws in many states require landlords to terminate the tenancies of residents who commit specified crimes on or near the premises (in some situations, the local district attorneys will do the evicting for you if you’re lax). In some states, the landlord’s duty doesn’t kick in until the tenant has been arrested or convicted; others leave it up to the landlord to determine whether the criminal laws have been broken. But all of these laws bear one thing in common — the offenses for which you must evict are enumerated, and they typically concern drug dealing, prostitution, gang activity, and the like. Even the broadest statutes require that the criminal activity pose a danger or threat of danger to persons on the premises or to the rental property itself. These statutes probably can’t be used by a landlord who wants, for example, to evict an otherwise lease- and law-abiding tenant whom he learns has been convicted of tax evasion or bad-check writing, or a host of other crimes that don’t threaten other residents or the landlord’s property.

Let’s suppose that you live in a state with broadly written statutes, as described above. Possessing child pornography is a crime against the child depicted in the photo, but it’s debatable whether committing this crime in the privacy of one’s apartment poses a threat to others on the rental premises. One can imagine arguments in favor (are possessors of such materials likely to target children living on the property?) and against (studies have shown that most criminals do not commit crimes where they live). To know whether you have a duty to terminate in this situation, you’ll need to know precisely what your nuisance termination laws say and how they’ve been interpreted in situations like the one you describe.

Your worry about liability for reporting what you saw is understandable, particularly because, as you note, it is not easy to know which visual depictions are criminal. For example, possessing a computer-generated picture of children engaged in sexual activity is not a crime; but just to make matters more confusing, attempting to download or possess computer-generated pictures is a crime! But as long as you have a good faith and reasonable belief that you’ve witnessed a crime, contacting law enforcement won’t expose you to liability, even if the prosecuting attorney declines to pursue the case or prosecutes but loses. The reason for this rule is easy to see — without it, people would hesitate to cooperate with law enforcement in many situations, fearful that if the defendant is exonerated, they could be successfully sued. This shield is not absolute however. For example, it won’t protect you from a defamation lawsuit by your tenant if you spread rumors about what you saw.

Q: We live in a 63-unit apartment complex and received a notice on the first of last month telling us that we had to pay $50 for a new remote to open the parking gate, which was getting a new card reader. We were told we could use our old remote until mid-month, but after that date the gate would no longer open with the old device.

As of this writing, six weeks after the notice and one month past the cut-off date, the new reader is in place but the old remote still opens the gate. The new remote works too, but my concern is that I paid the $50 in good faith, believing I had to in order to access my parking space. Management has had my money for two weeks and I would like to know your professional feelings and advice on this matter. –Cathy V.

A: Two possibilities come to mind: Either the management is running a clumsy scheme to bilk tenants out of $50 each, or they’ve simply forgotten to disable the old remote. Common sense suggests it’s the latter: Management spent your money on a new gate reader and new remotes, rather than a trip to Bermuda or lottery tickets.

Probably, your landlords simply forgot to cancel the old devices’ ability to open the gate. While this is kind of a bone-headed mistake, it doesn’t amount to fraud. Although someone who didn’t pay the fee saved 50 bucks, that tenant’s luck doesn’t translate into a legal beef against management for you.

You might, however, give some thought to whether this fee was proper in the first place, in light of your lease and its terms. If your lease or rental agreement gives you parking rights, and says nothing about paying for replacement remotes, then arguably this fee was improper. When mechanical devices fail, as they do from time to time, landlords are supposed to pay for their maintenance and replacement, unless the tenant broke the device or the rental document puts that obligation on the tenant. Check the "Maintenance" or "Parking" clause of your rental document: If it doesn’t cover paying for new parking remotes, you may have a viable legal complaint right 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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