Property Manager’s Liability for an Assault Upon a Tenant #79
CATEGORY: Legally Speaking
TAGS: Damages Negligence Property Manager Residential Tenancy Strata Properties Vancouver Island Real Estate Board (VIREB)
By Gerry Neely
A case involving an assault upon a tenant will be of interest not only to property managers and owners of rental properties, but perhaps also to Strata Corporations. The facts involve the rape of a tenant by an employee of the Company managing the property for the owners. The police concluded from the lack of signs of a forced entry to the tenant's apartment, that the door was opened by a key that was either a master key or a duplicate of it.
The master keys to the 417 rental units were kept on pegs on the wall of the office of the superintendent. These keys were not locked away and were available to any one of the seven or eight employees who worked in the apartment complex. No formal checkout or other record was kept of their use by employees.
The police investigation led to the arrest and conviction of the employee and the tenant then sued the property managers and owners for damages.
Evidence at the civil trial revealed that the local police crime prevention unit had advised the superintendent a year or so earlier, that the locks were inadequate. No changes were made because of cost. There was evidence that a similar assault had taken place four months earlier, but to avoid hampering the police investigation, at the police's request, no information about this assault was circulated among the other tenants. Following this first incident however the property manager neither recommended a change in the locks nor altered the operation of the master key system.
Evidence of a lock expert was that the one-half inch bolt in the deadbolt lock, was inadequate, in part because of the deterioration of the door frame. His opinion was that to forestall a forced entry, a one inch bolt was required. It was also his opinion that the master key system was a security liability because of the easy duplication of the master keys. He had recommended to tenants who had sought his advice, that they install their own locks. While the tenancy agreement prevented the tenant from altering the lock without the written consent of the landlord, the property manager said that permission was granted to those tenants who wished to do so.
The Court held that the property manager was negligent. The negligence arose from the property manager's failure: to supervise access to the master passkeys; to equip the tenant's apartment with proper locks or a door that was in a good state of repair; to take any cautionary measures when the first assault occurred, to ensure the security of the other tenants; to implement the security recommendations of the local police crime prevention unit.
The owners were held not to be liable, but damages in the amount of $40,000.00 were given to the tenant against the property manager.1
How might this apply to Strata Corporations? The Vancouver Island Real Estate Board has forwarded a reference to a California case where the equivalent of a Strata Corporation was held to be liable for the rape of a unit owner, by a visitor to the community. The circumstances were that the owner had complained about poor lighting and when the corporation failed to do anything, the owner put up her own lights in violation of the corporation's bylaws. She was forced to take them down by the corporation and shortly after she did, the attack occurred. The corporation was held to be liable in damages to her because of its failure to investigate the problem of security or to seek solutions.
These cases suggest that if an owner, property manager or Strata Corporation believes or can reasonably be expected to believe that there is a problem with security and does nothing, liability will arise if a trespass results in damage.
|Q. v. Minto Management Ltd. et al,36 R.P.R. 1975.
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