Legal Update: Landlord Liability For Tenant Created Nuisances
May 18, 2015
Hello, please see below from Christopher Walker of the Law Offices of Scott Clark. When situations like this arise we process a 10 day violation notice to tenants cited for causing disturbances on community grounds. This serves to put the tenant on notice, giving the tenant time to cure the issue, and also serves as proof that we are taking steps to resolve the issue (and thus are in compliance with the law.)
Landlord Liability For Tenant Created Nuisances a Growing Trend in Arizona Municipalities
Christopher R. Walker, Esq. | Law Offices of Scott M. Clark, P.C.
Every landlord has had unruly tenants who cause disturbances on community grounds, often times resulting in law enforcement's response. While landlords have an obligation to ensure the quiet enjoyment of the community is maintained, landlords have not previously been civilly or criminally liable for the conduct of their tenants. However, longstanding ordinances in Tucson and recent laws enacted in the City of Tempe coupled with a new ordinance proposed in Flagstaff show a new trend in municipal law which imposes liability on landlords who "allow" or fail to take "reasonable steps" to address unruly tenants.
Enacted in February of 2003, Section 16-32 of the Tucson City Code imposes liability on landlords for nuisances created by their tenants. Under this statutory scheme, the penalty for a party found responsible for an unruly gathering (nuisance), will be fined a minimum mandatory fine of five hundred dollars ($500.00). Additionally, if the party found responsible for an unruly gathering has previously been found responsible for an unruly gathering, regardless of the location of the prior violation, the penalty shall be a minimum mandatory fine of seven hundred and fifty dollars ($750.00). Upon notification of an unruly gathering, landlords must take immediate action to abate the activity else run the risk of civil sanctions.
In September of 2014, this Firm authored an article on the Tempe Security Plan Ordinance, highlighting the most common questions about the ordinance and its impact on the multi-housing industry. The highlights of the Security Plan Ordinance are as follows:
Residential rental communities of five (5) or more rental units are subject to the Security Plan Ordinance. Section 26-71(B);
Communities which demonstrate "a disregard for public safety" are subject to the security plan requirement;
Intervention of either a peace officer or a security guard to restore normal order is sufficient to demonstrate a community has a disregard for public safety; and
Failure to comply with the Security Plan Ordinance can result in civil liability, including a fine of up to $5,000.00 per day after the expiration of the submission deadline, and criminal liability in the form of a class one misdemeanor.
Currently, the City of Flagstaff is considering becoming the third municipality to impose landlord liability for tenant caused nuisances. The Flagstaff City Council is in the second phase of its plans for implementing a new ordinance which imposes civil penalties on landlords whom have tenants who are unruly for similar reasons to that which prompted the enactment of the Tempe Security Plan Ordinance and, presumably, the Tucson Unruly Gathering Ordinance. If successful, the new ordinance will go into effect in June of 2016 and Flagstaff will join the ranks of two other municipalities holding landlords responsible for nuisances caused by their tenants.
According to legislative reports, in recent years the Flagstaff Police Department has responded to an increasing number of loud, unruly gatherings on large student housing properties. Neighborhoods, particularly those adjacent to or near the University, have consistently borne the burden of residents who violate the peace and tranquility of the community as a whole. Public urination, litter from spent alcohol cups and containers, upended trash and recycling receptacles, loud music and noise in the form of amplified music, traffic congestion and parking problems, are some of the disruptions residential neighbors adjacent to these disturbances have reported to local law enforcement. The City Council is looking for alternatives or better methods to deter this criminal activity and has chosen an amendment to local ordinances as a method to achieve this goal.
Under the proposed amendment, in addition to civil sanctions, the ordinance would reflect changes to the definition of a "Nuisance Party" which is now proposed to be defined as a gathering of five (5) or more persons on any private property. Currently, the nuisance ordinance calls for fifteen (15) or more persons to be on the premises and more than two (2) officers are needed for the response. Under this amendment any persons attending the party and contributing to the nuisance can be cited on a first response by one or more officers. Also, any sponsor, host or organizer of the event may be cited during a first response.
Lastly, if the property owner is on the premises during the "Nuisance Party" and takes no reasonable action to prevent the "Nuisance Party" the property owner may be cited. However if the property owner is not on premises but proper notice was provided making the property owner aware of a "Nuisance Party" a civil fine can be imposed if the "Nuisance Party" has occurred after the notification was made.
The ordinance does allow for a waiver to be issued if the property owner has taken steps reasonably necessary to prevent other parties, is in the process of an eviction, or agrees to actively participate in the Flagstaff Police Department's Crime Free Multi-Housing Program, or if the landlords owns over 100 individual units obtains private security on the property. Concerns have been raised to the City Attorney's office regarding the ambiguity in the waiver process, requesting more specific criteria for what constitutes reasonable action to prevent further parties. However, the City Attorney has voiced concern over providing a more specific definition to reasonable acts and has insisted that the language, as proposed, is sufficient.
For obvious reasons, changes in the law that impose civil sanctions on landlords for their tenants' conduct is concerning. More concerning is the growing trend in holding landlords responsible for their tenants' behavior in an effort to combat nuisance complaints in communities. While these types of civil sanctions have limited to Tucson, Flagstaff, and Tempe, there is concern that this will become a growing trend and soon a reality in every major municipality in Arizona.
While landlords cannot stop legislation like the above from being enacted, landlords can try to work with local law enforcement to dispel with the concerns that prompted the enactment of the above-mentioned ordinances. To this end, landlords should work closely with their Crime Free officers and strictly enforce all community rules and regulations, with special emphasis on noise and other nuisance related violations. If landlords show proactive measures in place to deter this conduct, municipalities may no longer feel it necessary to create civil sanctions to compel landlords to work with local law enforcement to abate nuisances on community grounds.
If you have any questions regarding your rights or responsibilities with regards to nuisances that may occur on your property, you are encouraged to contact the Law Offices of Scott M. Clark, P.C., for assistance.