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In order for a tenant to hold a landlord liable for their damages resulting from an accident at the rental property, the tenant must be able to show evidence of the landlord’s knowledge of the dangerous condition.

Landlord Duty to Repair and Maintain the Rental Property

Generally speaking, landlords are obligated to know about the condition of their properties.  It is unlawful to rent an apartment to a tenant and then ignore the property until the lessee moves out.  Landlords have a continuing obligation to inspect their property and make necessary repairs.  Meaning, landlords have a duty to conduct regular maintenance, just like any other property or business owner.



When is the landlord liable for your accident if you slip and fall in the elevator on the way to your apartment? This was the question in the Firth case.


What About The Tenant’s Right to Privacy?

Maintaining property does not mean that a landlord can invade a tenant’s privacy and continually inspect the premises and snoop around.  Tenants have the right to live in their homes without being harassed by the property owner or property management company. Florida law allows a landlord to inspect the premises and make repairs but only if the landlord gives the tenant reasonable notice and comes at a reasonable time. See Florida Statute 83.53 (2).

Read: 6 Tenant Rights That All Florida Tenants and Landlords Need to Know.

Accidents Caused by A Dangerous Condition on the Rental Property

There is a gap of information between the landlord’s duty to maintain the premises and the tenant’s right to privacy.  That gap can create a situation where the landlord becomes unaware of a dangerous condition.

It is because of this “gap” that tenants are hurt and personal injury lawsuits are filed against landlords.

How does a tenant win a personal injury case when a gap of information like this exists?  A tenant must prove that the landlord had “constructive knowledge” of the dangerous condition.

Actual Knowledge versus Constructive Knowledge

The Florida courts have defined constructive knowledge as a condition that “…occurred with regularity and consequently, was foreseeable.”  Firth v. Marhoefer, 406 So. 2d 521 (Fla. Dist. Ct. App. 1981).

In these situations, it may be true that the landlord had no actual knowledge of the cause of the accident.  The landlord may have a valid defense to a claim by arguing that he or she didn’t know about the condition, or that the tenant never told them about the dangerous condition.

However, under Florida law, the fact that the landlord did not have actual knowledge of the dangerous condition does not give a landlord an absolute shield from liability.

This is because Florida landlords must protect people who rent their homes from them by taking “reasonable precautions to maintain” those homes in a “safe and clean condition.”  Additionally, if the accident is caused by a dangerous condition that existed long enough for the landlord to have discovered and fixed it, then the landlord will be presumed to have known about it.

Meaning, the law will impose knowledge on a landlord or it will “construct” knowledge in order to hold the landlord liable for the harm that has occurred. The landlord could have discovered the dangerous condition had the landlord used reasonable care or diligence.

Proving Constructive Knowledge

There are two ways the tenant can prove the landlord’s constructive knowledge:

  1. Show that a condition was there for a long period of time:  i.e., evidence showing that the dangerous condition existed for such a length of time that the landlord should have discovered it, or
  2. Show that the condition happened often: i.e., evidence that the condition occurred with such regularity that its recurrence was foreseeable.

Kitsopoulos v. Mathers Bridge Restaurant, Inc., 627 So. 2d 68 (Fla. Dist. Ct. App. 1993).

What is an example of evidence that shows constructive knowledge on the part of a landlord?  In the case of Nance v. Winn Dixie, the tenant provided evidence that the store’s maintenance records showed that it had notice of an ongoing problem that was dangerous if left unattended.

The Case of the Oceanfront Apartment Building Elevator

Another example in which the courts have defined “constructive knowledge” in a landlord-tenant setting is in the case of Firth v. Marhoefer.

Back in May 1978, Floridian Hetty Firth lived in Fort Lauderdale, where she rented a place at the Royal Admiral Apartments on Galt Ocean Mile.  Mrs. Firth was 72 years old.   She had lived here since 1964, enjoying the view from her 16th floor apartment.

The building had three elevators:  one service elevator and two passenger elevators.  Tenants were to use the two passenger elevators, not the service elevator, unless they were coming from the pool or from the beach.

Apartment rules were that swimmers were to use the service elevator if they had been swimming and were dripping wet.

On May 16, 1978, elderly Mrs. Firth left her apartment to run some errands.  She carried her packages with her, down the 16th floor hallway to the passenger elevators.  The elevator pinged, the doors opened, and Mrs. Firth stepped inside.  She sat her packages down on the floor of the elevator, and turned to push the button for the lobby.

In doing so, Mrs. Firth slipped and fell on water that was standing on the passenger elevator floor.  She was severely injured as a result of her fall.

The landlord denied responsibility for her injuries, so she sued both the landlord and his insurance company that had denied her claim.

At trial, a former manager of the apartment building, Joanne Turner, took the stand.  Mrs. Turner told the jury that while everyone knew the swimmer’s rule about using the service elevator, no one obeyed it.  People came in from the pool or the beach all the time, using the passenger elevators to get back to their apartments.

Mrs. Turner explained it was a hard rule to enforce.  Plus, tenants often found the service elevator in use for various reasons and they had no option but to use the passenger elevators.  The service elevator was not always available for the tenants.

Mrs. Turner also testified that carpet had been put into the passenger elevators to try and help soak up the water dripped from the swimmers.  Each elevator had two sets of carpeting, so management could trade them out as they got soaked.

Additional testimony revealed that after Mrs. Turner left the job (she was terminated in 1977), the carpeting in the passenger elevators was removed.  All that was left on the passenger elevator floors was the underlying vinyl or linoleum flooring.

The Florida court found that Florida Statute 83.51 created a statutory duty for residential landlords in this state.  They are to take reasonable precautions to maintain apartment house common areas in a safe and clean condition, but they have to know about a problem before they can be held liable for failing to fix it.

Although the landlord of the Royal Admiral Apartments did not have actual knowledge of the water on the elevator floor when Mrs. Firth slipped and fell, the landlord did have “constructive knowledge” of it.

Constructive knowledge of a dangerous condition can be assigned to a landlord where it can be shown that the condition recurred with regularity and, consequently, was foreseeable.

The fact that carpeting had been placed in the passenger elevators at an earlier time to try and cope with the swimmers leaving puddles of water, which created a risk of someone slipping and falling, was held to be sufficient evidence of the landlord’s constructive knowledge.

What Should You Do?

Landlords cannot simply rent their property to a residential tenant and then forget about maintaining the property.  Landlords have to provide their residential tenants with safe living conditions and they have a duty to maintain and inspect their premises. Inspections serve many purposes, including learning about conditions on the property that may be dangerous and need repair.

If you have been hurt by a condition on your rental property, and the injury was caused by a condition that the landlord was aware of or should have been aware of, then a good piece of advice is to speak with an experienced Florida real estate lawyer to learn about your rights. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.


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Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

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