Rented house burgled: Sue landlord for negligance?

mikemac

I understand legal advice can't be given so here's a hypothetical situation.

Tenant is renting a property in a nice area of Dublin.
Last night the tenant was out in a night club and came home to find the front door open and the house burgled. Most valuable contents stolen was a laptop and two ipods but plenty more was taken.
Gardai were called and they came quickly. They came again this morning to take a statement and to check around the house again. The burglars definitly came through the front door and not any windows

Now, the glass panel in the front door was cracked for two months before this happened. So it would be possible for someone to smash this glass easily and reach around and open the lock. The lock was also jamming regulary for the past few months so possibly it wasn't 100% effective.

The landlord was asked several times to fix the glass panel in the door and get a new lock. They ignored all requests.

The tenant has no contents insurance for property lost. So could the tenant sue the landlord for any loss as the front door was not secure and they were told about it before the house was burgled.

Is the contributary negilgance?

Rhonda9000

A very interesting hypothetical question for sure.

Tom Young

Contributory Negligence is a defence in this matter for the defendant or counter claiming party depending on the facts, proofs etc.

So if you claim against the landlord, he would counter claim stating Contributory Negligence, on your part.

Look at your lease, make sure you have the Gardai informed and a file with them on the matter. Make note of the value of the items lost and indeed stated attempts on your part to remedy the situation with the land lord.

Some cases on this that spring to mind are: Goldfarb v. Williams, Hunter v. Canary Warf etc. these arise in private nuisance.

Course, the landlord might have contents insurance depending on whether or not he himself lived there, or indeed some type of conjugigal arrangement for insuring the contents. If he does, you could find that a claim against that might have your hypothetical ass in front of a court for contributory negligence!

ircoha

As the OP does not say if the cracked pane was broken to gain access it seems very iffy to me to rely on the lock.
Could have been an ex-tenant?

Overheal

Question: in the event of Contributional Negligence, would the tenant then have to cover 1/2 of the damage cost?

mikemac

ircoha wrote:

As the OP does not say if the cracked pane was broken to gain access it seems very iffy to me to rely on the lock.
Could have been an ex-tenant?

No, wasn't an ex-tenant with a key to the house.
The front door has a number of stained glass panels. One of these was broken so you could look through the hole and see the hallway from outside if you wanted to.
In fact if you wore gloves you could probably open the door without breaking more glass and the hole was big enough to put your arm through it.
So what happened was someone smashed the glass panel and reached around and opened the lock.

I'm just wondering if the landlord should compensate the tenant as they ignored requests to fix this.

templetonpeck

micmclo wrote:

No, wasn't an ex-tenant with a key to the house.
The front door has a number of stained glass panels. One of these was broken so you could look through the hole and see the hallway from outside if you wanted to.
In fact if you wore gloves you could probably open the door without breaking more glass and the hole was big enough to put your arm through it.
So what happened was someone smashed the glass panel and reached around and opened the lock.

I'm just wondering if the landlord should compensate the tenant as they ignored requests to fix this.

Sounds like something that happened to me a few years ago. We were broken into, we couldn't put the alarm on at night coz it was defective, though we asked the Landlord to fix it 101 times. Two guys broke in during the night and ransacked the place while we were in bed. The Landlord sorted the alarm out the next day, but I wouldn't have sued him on it. I was so glad we were all okay.

I don't think you can sue the Landlord over it. The fact is these creeps are determined and will break in any how or any way, whether the glass was defective or not.

Sorry that it happened to you though, it really is an awful thing.

Lawlord007

It is difficult to give an answer either way to our hypothetical friend. There is simply not enough detail. For instance, did the tenant cause the glass panel to be broken those 2 months ago? In any event, the duty is on the landlord to repair premises BUT the tenant is entitled to carry out repairs himself and then reduce the amount of rent he pays by the amount that it cost him to do the repairs (in the event that the landlord should fail or refuse to repair, that is). In light of this, the tenant does appear, on first glance, to have a good cause of action in negligence and breach of statutory duty on the part of the landlord.

But the tenant may wish to ask himself whether he really wants to go through with legal proceedings in such a case? Is it worth the bother? It may, of course, be deployed as a tactic to scare the landlord into paying some form of compensation. But the first thing to do would be to ask the landlord politely to contribute towards the value of some of the missing items.

I would also hasten to add that there appears to be an element of contrib neg inasmuch as the tenant has waited 2 months without doing anything and, should a successful claim be brought, the amount of damages will probably be reduced proportionate to the blameworthiness of each party.

templetonpeck

Just another thought, isn't it the responsibility of a tenant to effect their own contents insurance?

Our man in Havana

templetonpeck wrote:

Just another thought, isn't it the responsibility of a tenant to effect their own contents insurance?

Exactly!

Maximilian

No negligence I don't think. How can one person be held responsible for the criminal action of a third party. I don't do litigation anymore but that certainly is my recollection. The negligence didn't cause the loss, its was the criminal act.

Lawlord007

Maximilian wrote:

No negligence I don't think. How can one person be held responsible for the criminal action of a third party. I don't do litigation anymore but that certainly is my recollection. The negligence didn't cause the loss, its was the criminal act.

There are many cases in which a person has been held liable for the criminal acts of a third party; it is trite law at this stage - unless the criminal act was a novus actus which, in this case, it clearly was not. The fact is that, if u owed a duty to prevent the criminal act from happening then the ordinary rules of negligence apply.

tombren

whether the landlord was negligent or not (imo the tenant may have difficulty proving causation) this seems to be a case of pure economic loss, no-one was injured due the 'negligence' of the landlord, items were stolen which have a monetary value and can be replaced, tenant is out of pocket,
in the past irish courts have allowed redress for pure econic loss (eg ward v mcmaster) but the law is not settled in this area and in the more recent glencar case, judge doubted whether any right to recovery for pure econic loss (outside neg. mistatement) existed in irl.,
so methinks that you probably wouldnt succeed against the landlord even if you could prove negligence existed

Maximilian

Lawlord007 wrote:

There are many cases in which a person has been held liable for the criminal acts of a third party; it is trite law at this stage - unless the criminal act was a novus actus which, in this case, it clearly was not. The fact is that, if u owed a duty to prevent the criminal act from happening then the ordinary rules of negligence apply.

I take your point but I disagree with you. Can it be said the house wouldn't be robbed if it weren't for the cracked window? A fully intact window can still be broken. NAI, Causation etc.

Lawlord007

Oh well that is a matter of argument and it is why I say that the tenant appears to have a case, whether or not he would win is a different matter. But any decent lawyer would advance the argument that the broken door attracted the burglars and facilitated the burglary - it's hardly a coincidence that the only house burgled was the one with the broken door (which i shall assume). To put it another way, was it reasonably foreseeable that a broken door providing easy access to the house would result in the house being burgled? Of course it was - isnt that one of the main reasons for having a proper, functional door ie to prevent burglary?

@ tombren - Im not sure why u think this is pure economic loss? It is property which has been stolen and, while that has resulted in economic loss of a sort, it is not 'pure' economic loss of the type to which you are referring. If u get run over by a car and break a leg (I do hope this never happens but just for the sake of argument) which results in hospital expenses then the driver of the car (who we shall assume was negligent) cannot argue that the hospital expenses are not recoverable on the grounds that it was an 'economic loss'? If that were the case then there would be no such thing as damages in tort!

tombren

Lawlord007 wrote:

Oh well that is a matter of argument and it is why I say that the tenant appears to have a case, whether or not he would win is a different matter. But any decent lawyer would advance the argument that the broken door attracted the burglars and facilitated the burglary - it's hardly a coincidence that the only house burgled was the one with the broken door (which i shall assume). To put it another way, was it reasonably foreseeable that a broken door providing easy access to the house would result in the house being burgled? Of course it was - isnt that one of the main reasons for having a proper, functional door ie to prevent burglary?

@ tombren - Im not sure why u think this is pure economic loss? It is property which has been stolen and, while that has resulted in economic loss of a sort, it is not 'pure' economic loss of the type to which you are referring. If u get run over by a car and break a leg (I do hope this never happens but just for the sake of argument) which results in hospital expenses then the driver of the car (who we shall assume was negligent) cannot argue that the hospital expenses are not recoverable on the grounds that it was an 'economic loss'? If that were the case then there would be no such thing as damages in tort!

i agree completely in all other areas of tort, eg, nuisance, defamation, physical injury is not a pre-requisite but the op was asking about negligence and it is quite difficult to recover under negligence law without physical injury, your example includes the physical injury so of course the person who was run over by the car would be entitled to compensatory damages/hospital expenses if the car driver was found negligent

Lawlord007

tombren wrote:

i agree completely in all other areas of tort, eg, nuisance, defamation, physical injury is not a pre-requisite but the op was asking about negligence and it is quite difficult to recover under negligence law without physical injury, your example includes the physical injury so of course the person who was run over by the car would be entitled to compensatory damages/hospital expenses if the car driver was found negligent

The law of negligence requires that there be 'loss' - it need not be personal injury. If u read a statement of claim for negligence it will always seek compensation for 'loss, injury, inconvenience and expense'.

To lose items of personal property does amount to loss. So the landlord is required to return the property but, since he cannot do this, he must pay compensation (just as, in my previous example, it would be impossible for the driver to give u a new leg). Suppose this negligent car driver next ran over ur favourite horse. Are u saying u are not allowed to sue him in negligence just cos there was no physical injury to u? The horse is still property and you are entitled to sue in negligence. You may also sue in negligence if the accident resulted in damage to your car - it would be ridiculous if you couldnt, dont u think?

templetonpeck

Lawlord007 wrote:

Oh well that is a matter of argument and it is why I say that the tenant appears to have a case, whether or not he would win is a different matter. But any decent lawyer would advance the argument that the broken door attracted the burglars and facilitated the burglary - it's hardly a coincidence that the only house burgled was the one with the broken door (which i shall assume). To put it another way, was it reasonably foreseeable that a broken door providing easy access to the house would result in the house being burgled? Of course it was - isnt that one of the main reasons for having a proper, functional door ie to prevent burglary?

@ tombren - Im not sure why u think this is pure economic loss? It is property which has been stolen and, while that has resulted in economic loss of a sort, it is not 'pure' economic loss of the type to which you are referring. If u get run over by a car and break a leg (I do hope this never happens but just for the sake of argument) which results in hospital expenses then the driver of the car (who we shall assume was negligent) cannot argue that the hospital expenses are not recoverable on the grounds that it was an 'economic loss'? If that were the case then there would be no such thing as damages in tort!

Surely it is pure economic loss suffered by the Tenant? If the victim of a car accident, you are governed by the Law of Tort, ie you suffered a wrong doing due to the negligence of some body else and so you are entitled to be compensated for all expenses (leaving out the personal injury part) incurred by you as a result of this Tort.

With the Tenant all he suffered was the loss of material items which had economic value, therefore the only loss was an economic one. The cost of fixing the door etc would be akin to expenses in the Tort action, but these would be recoverable by the Landlord through his insurance.

How could you prove that the only reason for breaking in to the house was because of the defective glass?

templetonpeck

Lawlord007 wrote:

The law of negligence requires that there be 'loss' - it need not be personal injury. If u read a statement of claim for negligence it will always seek compensation for 'loss, injury, inconvenience and expense'.

To lose items of personal property does amount to loss. So the landlord is required to return the property but, since he cannot do this, he must pay compensation (just as, in my previous example, it would be impossible for the driver to give u a new leg). Suppose this negligent car driver next ran over ur favourite horse. Are u saying u are not allowed to sue him in negligence just cos there was no physical injury to u? The horse is still property and you are entitled to sue in negligence. You may also sue in negligence if the accident resulted in damage to your car - it would be ridiculous if you couldnt, dont u think?

The Landlord is not automatically responsible for the loss suffered by the Tenant. The OP would have to look at their Lease (if they have one). If there is a covenant in that Lease stating that the Tenant should insure their own belongings (which there usually is) and the Tenant didn't do so, then there's nothing can be done. If the insurance company won't pay out because of the defective glass/lock on the door, then that makes the case a little clearer for the Tenant if they wanted to take an action.

Maximilian

The Standard DSBA letting agreement incidently provides that the tenant is responsible for replacement of glass. Its likely the case here as well.

jubi lee

why did the OP not have his own contents insurance?????

His own fault.... if someone wanted to burgle a house a fixed glass window waon't deterr them.. sure if they wanted to see in all they'd have to do normally is look thru the letter box...

insure insure insure...

templetonpeck

Maximilian wrote:

The Standard DSBA letting agreement incidently provides that the tenant is responsible for replacement of glass. Its likely the case here as well.

Yeah, but isn't that only if the tenant broke it?

I think that the OP said they asked the Landlord to fix the glass and he had agreed to do it but seems he never got round to it. So does this supercede the tenant's responsibility to fix the glass? Having said that if they have a written letting agreement signed by all parties, a subsequent verbal amendment of the Lease couldn't be valid, could it?

johnnyskeleton

templetonpeck wrote:

Surely it is pure economic loss suffered by the Tenant? If the victim of a car accident, you are governed by the Law of Tort, ie you suffered a wrong doing due to the negligence of some body else and so you are entitled to be compensated for all expenses (leaving out the personal injury part) incurred by you as a result of this Tort.

With the Tenant all he suffered was the loss of material items which had economic value, therefore the only loss was an economic one. The cost of fixing the door etc would be akin to expenses in the Tort action, but these would be recoverable by the Landlord through his insurance.

The term "pure economic loss" has a specific meaning in tort law. It is not losing money as opposed to being injured, it is where the intanible value of an economic asset is reduced due to the negligence of another person. It is different from damage, which I think is the key - damage to a person, damage to property, damage to reputation, damage to your liberty, damage to your right to consort with your spouse etc.

Pure economic loss in negligence refers to situations where the loss claimed is more akin to breach of contract cases than to other torts. The landmark case is Hedley Byrne where, if I recall correctly, bad stockbrokers advice led to a bad investment, but there was no contractual relationship between the stockbroker and the people who lost their shirts. While the courts previously were unwilling to award damages in tort for such losses (as they usually had an action in contract), on that occasion the courts found that there was a duty of care in negligence.

So the term "pure economic loss" does not mean that the loss suffered is only property, just that the courts are hesitant to award damages in negligence in certain circumstances as above where the loss is of the nature of a business deal gone wrong, or a person's finances being mishandled. The OP's scenario is that there was damage to property, the damage being that some of it was removed from their possession.

I suppose the best example I could give between damage to property and pure economic loss is this: If I buy a Ferrari and you crash into it, injuring no one, but it is damaged and needs €30,000 worth of repair, that is a different kind of action than, for example, if Ferrari announce that their latest cars are a load of rubbish and the value of my car drops in value overnight by €100,000. Or if a builder working down the street from me accidentally knocks a hole in my house, that is damage to my property and he would probably be liable in negligence. However, if I am about to close a sale and myhome.ie mistakenly states that the price of my house is less than the sale price and I have to reduce the price, that would (even if I could show that myhome.ie owed me a duty) have a much lesser chance of recovery.

templetonpeck wrote:

How could you prove that the only reason for breaking in to the house was because of the defective glass?

Get sworn evidence of the burglar that he was only going out for a bag of chips, but when he saw the broken window he just couldn't resist.

I think it is more: 1) the landlord owed a duty of care to take reasonable care of the tenant, 2) this duty included taking reasonable steps to prevent the house being burgled 3) the landlord was aware of the broken window, the hazard that represented, and negligently omitted to do anything about it 4) on the balance of probabilities it was reasonably forseeable that the failure to fix the broken glass would facilitate or encourage a burglar to enter the premises and 5) the damage caused to the tenant was reasonably foreseeable as arising from any such burglary.

So I don't think they need prove that the only reason for breaking into the house was the defective glass, just that it was reasonably forseeable that by not fixing the glass a burglary was likely, and that it subsequently happened. The part that I would be concerned with is whether the landlord's duty included a duty to prevent burglary. I think that, as you point out, the landlord could insist that the tenant is responsible for their own property/insurance, which could be a complete defence.

templetonpeck

Thank you for taking the time to reply in such detail Johnny. I understand now (I think!!) the reasoning behind pure economic loss.

As regards the landlord/tenant....does the Landlord owe the Tenant a duty of care to take reasonable care of the tenant? For example if a house didn't have a burglar alarm set up in it, by not supplying a burglar alarm is the landlord failing in his duty of care?

johnnyskeleton

templetonpeck wrote:

Thank you for taking the time to reply in such detail Johnny. I understand now (I think!!) the reasoning behind pure economic loss.

As regards the landlord/tenant....does the Landlord owe the Tenant a duty of care to take reasonable care of the tenant? For example if a house didn't have a burglar alarm set up in it, by not supplying a burglar alarm is the landlord failing in his duty of care?

I think he would owe a duty to take reasonable care, but I wouldn't be sure whether that duty includes taking care that he doesn't get burgled. Even if he did, his duty only extends to taking reasonable steps to prevent the injury, as it is very rare that someone would have an absolute duty to prevent an injury. The reason I can't be certain is that the courts, in my view, make decisions based on the very specific circumstances of each case and the conduct of the parties is sometimes more important than any strict application of a legal principle.