Q: While my son and his girlfriend were visiting us over the holidays, a water main in their apartment burst and flooded their apartment. All of their possessions — clothes, furniture, everything — were ruined by the water or the resulting mold. Is the landlord responsible for replacing these items? –Sharon P.

A: If your son had renters insurance, the answer to your question would be short and sweet: Call the agent and file a claim. Renters insurance, which typically costs just a few hundred dollars a year, will cover the damage you’ve described.

But since you didn’t mention it, I’ll assume there’s no insurance to cover the damage. Then, the answer to your question depends on why the water main broke — and more specifically, who’s responsible.

The main itself is under the control of the landlord, as are other major elements of the building and its systems. If the break resulted from the landlord failing to maintain it, one could argue that the landlord was negligent.

For example, if the owner knew that the pipes were in danger of bursting (because they were old or had been repaired in a faulty way, for example) but did nothing to deal with the problem, your son might be able to convince a judge that the landlord’s carelessness resulted in the break, which resulted in his losses.

That will get your son’s foot in the door to make a claim against the landlord’s insurance policy. The insurance carrier, which has contractually agreed to pay for damages caused by the landlord’s negligent acts, should step up.

But suppose the pipe burst from no fault of the landlord? Did unusually cold weather put stress on a pipe that normally would hold just fine? Or did the pipe break for no apparent reason, with no warning? If the landlord was not negligent, he isn’t responsible for the damage suffered by his renters.

Losses that result from accidents or defects on the property are the landlord’s responsibility only if he was careless or otherwise actively failed to maintain the property.

(Here’s an interesting wrinkle: Suppose the pipe burst through no fault of the landlord, but he was inexcusably slow to respond and made no efforts to save his tenants’ possessions, knowing the residents were absent. Then, you’d be dealing with negligence in the landlord’s response, which might be enough to lay responsibility on him for damage, such as mold, that could have been avoided had he acted promptly.)

Back to renters insurance, for a moment. If your son had it, the carrier would pay him with no questions asked regarding the culpability of the landlord. If the carrier suspected that the landlord had carelessly failed to maintain the pipes, it could proceed against him (or, more likely, his insurance company), to be reimbursed for what it already paid your son. And if your company couldn’t pin the cause on the landlord, they’d be out of luck — but your son would still have his money. …CONTINUED

Q: I run a seniors’ housing community (55 and older). I’ve asked my tenants to help me verify that I’m complying with the rules, but some say that I can’t ask about their age now that they’re tenants, that it’s age discrimination. What should I do? –Henry B.

A: Most of the time, landlords cannot ask tenants or prospects how old they are. The federal fair housing laws prohibit familial status discrimination (which includes age), though owner-occupied properties with four or fewer units are exempt. The laws of many states and localities echo and expand federal protections, and some close the owner-occupied loophole in the federal scheme.

But owner-occupier exemptions aside, landlords are entitled to ask about age when they advertise and run a "55 and older" property. These are rental properties where at least 80 percent of the residents are 55 years of age or older. Obviously, you can’t comply with the law unless you ask.

Your current tenants’ displeasure at being asked to provide continuing proof of their age is unfortunate, but they have no legal basis for their complaints. You’ll need to explain to them that you face continuing responsibility to be able to prove that you’re complying with the law. Now, you’ll doubtless hear an exasperated response that no one is getting any younger, but that doesn’t help you much.

For example, you may be thinking that the spouse of the couple in Unit A who was under 55 at the time they moved in is now older than 55, which increases your over-55 population. That, in turn, will allow you to accept one more under-55 resident, and still maintain your 80 percent mix. You can’t confidently accept that additional under-55 prospect without verifying that a slot exists.

One way to prepare residents for these ongoing questions is to include a clause in your lease or rental agreement, explaining that you will need to ask for verification of age periodically to maintain your legal tenant mix. Prospects who are about to rent from you should have no objection — after all, they’ve chosen a seniors community.

Making it clear from the start that you’ll need to verify age throughout the tenancy should eliminate the element of surprise when you ask, tactfully, for a copy of a driver’s license, passport or other official proof of age.

In a similar fashion, landlords whose loans require them to rent to a certain percentage of low-income tenants, or those who participate in affordable housing programs or the Internal Revenue Service’s low-income housing tax credit program, will need to gather financial information from tenants periodically in order to maintain their status.

All such landlords should use lease clauses that permit them to ask about income and jobs, as well as any other information they will need to comply with the terms of their loan or housing program.

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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