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Saturday, June 4, 2011

Gang Members, Violence, and Landlords…oh my! What every Landlord needs to know.

Gang Members, Violence, and Landlords…oh my!

            The Department of Justice estimates there may be as many as 200,000 gang and suspected gang members in California. Everyone is aware of the outward signs of a gang member, right? Baggy pants, a colored bandana, a lowered car, or is it a raised car? In this current rental market, landlords and property managers may receive numerous applications for available rentals. Does a landlord have the duty not to rent to gang members?
In July 2007, the California Supreme Court wrestled with the issue if landlords had the duty not to rent to gang members. What if the landlord merely suspects the applicant to be a gang member? Does the landlord have a duty to investigate the applicants background? To completely understand whether a duty is placed on landlords, we must first understand the legal term of “duty.” Blacks Law dictionary defines a duty as “A legal obligation that is owed or due to another that needs to be satisfied.” Understanding what a duty is, it’s important to know exactly what duties landlords have in choosing their tenants.
The background of the case before the California Supreme Court in Castaneda v. Olsher, is not unique to landlords or property managers. Olsher owned a mobilehome park in El Centro where Mr. Castaneda resided with his sister and grandmother. On November 9, 1996, Mr. Castaneda, who was seventeen at the time, was shot outside his home by Mr. Levarios a gang member who also lived in the trailer park. Mr. Castaneda alleged in his lawsuit against the owners of the mobilehome park, that Olsher had a duty “not to rent to [the Levarios] in the first place,” to “remove them once he had began to get complaints from the tenants that they constituted an annoyance,” or failing that, to take additional security measures such as hiring guards or providing bright lighting.
Duty not to rent to gang members
To begin the discussion, we must first acknowledge the courts have stated in the past that a landlord “generally owes a tenant the duty, arising out of their relationship, to take reasonable measures to secure the areas under the landlord’s control against foreseeable criminal acts of third parties.” In discussing the issue of landlords having the duty “not to rent to suspected gang members” the California Supreme Court summarized that street gangs and their members can often subject residents of mobilehome parks and apartments to unacceptable levels of fear and risk. However, the Court found that imposing a duty on landlords to withhold rental units from those who they believe to be gang members is unfair and an unworkable solution. The Court went on to say that if landlords deny rental to anyone who might be a gang member or, even more broadly, to any family whose members might be a gang member, the result would be arbitrary discrimination. In some circumstances, this arbitrary discrimination could result in illegal acts that could be against public policy and in turn subject the landlord to liability for discrimination. The Court stated in declining to create a new rule that landlords must  reject those with criminal backgrounds, the court did not mean to discourage landlords from being careful, and attempting to protect their current tenants when accepting new tenants into a building, complex, or mobilehome park.  
Duty to evict gang member tenants
In considering an eviction, a landlord normally has ample opportunity to observe and judge the behavior of an existing tenant rather that a rental applicant. Landlord’s can use their own observations or those of a property manager. In addition, if the Landlord deems other tenant observations reliable they may also be used in the decision of whether or not to evict a current tenant. The burden of eviction is great, considering the cost, time and effort a landlord must suffer in instituting an eviction. In some jurisdictions a landlord might have to establish a just cause for the eviction. Understandably, many landlords are intimated to evict a known gang member due to the fear of violence or retaliation. Recognizing this fact, the court creates a duty to evict a vicious or dangerous tenant “only in cases where the tenant’s behavior made violence towards neighbors or others on the premises highly foreseeable.”   For example, the court cited Madhani v. Cooper where one resident of an apartment building berated, shoved, bumped and psychically blocked Madhani and her mother on several occasions. Despite the tenant’s frequent complaints to the property manager, no action was taken against the assailant by the apartment manager.   Ultimately the assailant pushed the tenant down the building’s stairs, injuring her. The court stated this was a clear example where the landlord had a duty to act.
Duty to hire security guards or provide bright lighting
In this present case, the plaintiff argued that the park owner had a duty to provide security guards or bright lighting.  The Court explained for a landlord to have the heavy duty such as hiring security guards, a plaintiff in a suit against a landlord must show the existence of prior similar incidents on the premises or other serious “indications of a reasonable foreseeable risk of violent criminal assaults.” In the present case, the mobilehome park never suffered a similar act committed on the premises. Therefore, if a landlord is aware of recurring violent criminal acts on their premises, the court could extend liability to the landlord. Isolated incidents do not create the duty to hire security guards or increase other security measures.
Conclusion – Why does the CA Supreme Court decision matter to me?
Therefore, a landlord has no duty not to rent to suspected gang members, or to investigate any gang connection of prospective tenants. Once a tenant’s behavior is such that it’s highly foreseeable that they may cause harm to others on the premises, a landlord does have a duty to act. If you think violence is foreseeable, a court will probably agree and apply liability.

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