Q. I am very concerned about my safety and that of my mother. We live on a ground floor apartment and the other night there was a man on my patio trying get access to my apartment. I called the cops but they didn’t get him. Do I have any legal reason to be given a top floor apartment or to get out of the lease?
A. Maybe. Here is the prevailing law on this issue. Your landlord has an affirmitive duty to provide you with the quiet enjoyment of your property which includes, in many jurisdictions, the duty to provide you with a reasonably safe premise – whether that means ridding your premises of rat infestation or keeping you safe from criminal intruders.
Connection Between The Property And The Risk Of Danger
Notwithstanding, the landlord is not the insurer of your personal safety from third-party criminal acts, unless you can prove that the danger actually came from the features of the property itself. This would mean, for example, inadequate exterior lighting, exterior locks in disrepair, and failing to take “reasonable” measures to keep your premises safe and secure given the character of your neighborhood.
Having said this, without there being a physical connection between the property and the danger, the tenant must show that the landlord knew or should have known of the general danger but failed to take reasonable remedial measures to make the premises safe. Another way of understanding this, is to ask the question whether, under the circumstances, the danger to you and your child was reasonably foreseeable to the landlord under the circumstances. The answer to this question is multifactorial and requires common sense. Each case is measured against these measures.
Legal Basis To Break The Lease
You may have a legal basis to break the lease if you can prove the landlord breached the covenant of quite enjoyment by failing to take reasonably protective measures to make your premises safe. But again, this is a question of fact for a judge or jury to decide. The landlord will take the position that you were aware that a floor unit was exposing yourself to an increased danger but that you were willing to assume the risk. This argument will depend on factors such as whether there was adequate lighting outside your patio that would be reasonably sufficient to deter criminal behavior and whether the barrier between your patio and the walkway was high enough to keep intruders out. Also considered would be the crime rate of your particular neighborhood.
Be Reasonable And Respectful
We recommend having a reasonable and respectful discussion with the landlord and be careful not to assign blame or agitate the situation by being rude or indignant. You will want to get your concerns across and ask if an upper unit is available and whether you would be able to move into that unit. If this cannot be accommodated, you might ask whether the landlord is willing to release you from the lease, given your current concerns for your safety and that of your mothers.
If the landlord is not willing to do release you from the lease, you should seek the advice of a local tenant rights lawyer for a specific opinion on whether the evidence in your particular case is persuasive enough to break the lease. Remember, most leases have an attorneys fee clause that always favors the landlord, so be careful before you decide to take legal action.