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Q&A Regarding Property Damage

Property damage

Q: A resident started a grease fire while cooking, and there was an enormous amount of fire damage to the kitchen and adjacent dining room. Who is responsible to pay for the damage?

A: The landlord has a responsibility to provide habitable housing to tenants. However, tenants are generally responsible for damage that they cause beyond ordinary wear and tear. A grease fire is presumably the result of careless or improper cooking, rather than an appliance defect. The tenant is therefore the party responsible for the damage.

The landlord should not delay in undertaking repairs to the unit, regardless of who is responsible. Only after the unit is repaired and all costs accounted for should the landlord turn to the matter of recovering the cost from the tenant. If the tenant refuses to pay, then the debt can be paid from the tenant’s security deposit, but a large fire will probably cause more damage than a 2-3 month security deposit would cover. In that case, the landlord would have to go to court to enforce payment if the tenant will not agree to do so themselves.

If the damages are less than $10,000, the landlord can file suit in Small Claims Court. The landlord must make a payment demand in writing before going to small claims, and attorneys are not permitted to participate unless there is an appeal. The landlord should be prepared to present complete documentation of all costs that form the basis of the payment demand, including any offsets from the security deposit or partial payments by the tenant.

If the landlord wants to recover more than $10,000, the claim must be filed as a regular civil action in Superior Court. This would be a more formal lawsuit, and the assistance of an attorney is recommended to ensure that all filing and service requirements are fulfilled, as well as appearing and arguing in court. Because hiring a lawyer will be an additional cost that would reduce the value of the original claim, a landlord with costs just over $10,000 may decide to go to small claims court anyways and limit their recovery to in order to have a simpler case without attorney’s fees.

In either case, the landlord should be careful when demanding payment from the tenant. A tenant who was displaced and possibly lost their possessions or was possibly injured in a fire is likely to be a sympathetic defendant, even if they were responsible for the loss. On the other hand, if the tenant had been previously warned about potential fire hazards, or if the fire displaced other residents, that could also be relevant to how much blame the tenant would bear for the damage.

It is difficult to walk the line between punishing a tenant who has already been the victim of their own mistake, and holding them responsible for a fire which could have injured or killed other innocent people, along with damaging their property or their homes. Even for a small claims case, the landlord should consult with an attorney to consider all the facts and weigh the cost and benefits of attempting to recover damages from the tenant in court.

© 2020 by Fried & Williams LLP. All Rights Reserved. The information contained in this article is general in nature. For advice on any particular matter, please consult with our attorneys because the facts of your situation may be unique and the law changes from time to time

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