Over the past weeks, there have been a number of reports of New York City tenants suing their landlords over losses from Hurricane Sandy. A class-action lawsuit was filed by tenants angered after slipping from highrise luxury living into homelessness which may continue for months.
Other tenants blame their landlords for lost possessions they say were looted from buildings after residents were evacuated.
While it is no simple feat for a tenant to win a negligence claim against a landlord for damage caused by a natural disaster, defending a lawsuit of any nature is still stressful, time-consuming, and can lead to loss of income, even if the landlord prevails.
Tenants suing for storm damage likely will have to show that the landlord acted negligently in responding to the emergency situation. In some cases, the tenant will have to show that the actions were egregious — gross negligence — in order to overcome restrictive language in the lease agreement.
Typically, a lease agreement will provide that neither party is liable for breaching the contract if hampered by a natural disaster.
The purpose of this clause, sometimes referred to as force majeure, is to relieve a landlord from liability, unless the tenant’s injury — displacement, loss of belongings, higher living expenses — could have been avoided by reasonable diligence on the part of the landlord.
A force majeure clause may require the tenant to prove that the landlord’s behavior deviated from what would reasonably be expected of landlords under the same circumstances.
Landlords may be able to mitigate claims for negligence or gross negligence by showing that they:
Followed local laws, including building and fire codes;
Followed any emergency procedures or instructions provided by public officials; and,
Took reasonable steps to prevent foreseeable harm, like implementing an Emergency Plan in case of evacuation and power outages.
Eliminating all risks of injury is the only way to eliminate all risk of liability for landlords. Because that may be impossible, it is important to maintain adequate insurance appropriate for the locale — whether that includes floods, earthquakes, or other natural disasters. An insurance agent can be instrumental in suggesting ways to reduce risks of injury for a particular property.
Landlord insurance typically does not cover tenant’s losses within the specific rented unit. For that reason, it is a good idea for tenants to carry renters insurance, so they don’t suffer what could be a catastrophic financial loss.
Unfortunately, floods damage typically is not covered in a renters insurance policy. Tenants who rent in flood plain areas may be able to obtain a separate flood insurance policy.
Landlords and tenants can find more information regarding flood insurance through FloodSmart.gov or their local insurance agent.
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Disclaimer: The information provided in this post in not intended to be construed as legal advice, nor should it be considered a substitute for obtaining individual legal counsel or consulting your local, state, federal or provincial tenancy laws.