Last week, I wrote about mold, and quietly referenced "negligence," something that we talk about a lot here at the TRC, but the laws aren't real clear on. Negligence is a big deal in a lot of repair issues, so today I'm breaking it down. It can be really hard to hold someone financially responsible for a problem they could have prevented, but it's certainly possible, and today we're looking at how to do it.
Spoiler alert: everyone should write more letters. It's a lost art. It'll help you in the long run. Details below.
To start, a story: a single mom calls me. She's in a panic. She's in school, and struggles to make ends meet, but she just found an apartment on a quiet street that she loves. It isn't falling apart, unlike other places she's lived; it's in a little four-plex and the school district is good for her teenager. This client is panicking because, somehow, a big pipe burst in her upstairs neighbor's flat, and water is flooding through her ceiling. Seriously, it's gushing.
She called her landlord, incredibly upset, and her landlord told her not to turn off the water main, because it would involve turning off the water in other people's units. And so, water gushed in. It gushed in for 20 minutes more than it would have, if the landlord had said it was okay for her to turn off the water main in that initial conversation. It destroyed many of her belongings, most of which would have not been damaged had she been allowed to turn of the water main at that crucial moment. This destruction, it was a problem that her landlord could have prevented. And that, my best beloveds, is a definition of negligence.
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What exactly is negligence?
Negligence is when a person does not act with care toward others which a reasonable person would do in the same circumstances. Or, if a person does something with a reasonable person would not do.
Both tenants and landlords can claim that the other person has been negligent. According to Black's Law Dictionary, negligence is "the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do."
Some examples:
- A tenant might be called negligent if they didn't keep the house at the correct (lease-specified temperature), and because of that, a pipe burst in the winter.
- A landlord might be called negligent if they failed to fix an ice dam during the winter, which led to a significant mold problem in the summer.
What do I need in order to prove negligence?
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Explain how bad the situation is. If a tenant complains to the landlord that there's water in her unit, that could mean a lot of different things. Make sure the severity is clear. If you do this over the phone, that's fine, but send a follow-up in writing.
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Don't ask for a solution that the other person has no legal obligation to do. If a home is really hot in the summer, but the tenant and landlord don't have any agreement for there to be an air conditioner in the unit, the landlord doesn't have to provide one. If the tenant is frustrated about the homeowners next door, the landlord has no obligation to take action. So, double check that what you're asking for is something that the other person actually has some obligation to do or be responsible for.
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If you are asked to do something, make sure there's a paper trail. For example, the woman in the story up at the top could have quickly texted her landlord after their phone call in which he said not to turn off the water main. Something like, "you just told me not to turn of the water main. Are you sure? It's really gushing in here."
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Bonus points for saying what you think might happen. If you feel pretty clear that it's getting cold enough in the house that the pipes will burst, say so. If you're pretty clear that because the bathroom fan hasn't been fixed, mold is starting to grow, say so. You don't have to be all-knowing, but if you see something beginning to occur, mention it.
- Ultimately, if unresolved, these problems end up in court. That's where you go if you want to hold the other person liable for money you think they owe you, when perhaps they disagree. Small Claims Court is the place for claims that are for $10,000 or less, and Circuit Court for the claims over $10,000. Small Claims Court Tips are here, info on Discovery is here, and a strategy is here.
Tips:
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You really want to have a paper trail about things that could develop into problems. Since you can't see the future (right? Please email if you can - I have some questions), it's hard to know what will really become difficult and what will fade away. That's why it's important to keep the other person generally informed about all the things that come up. You should write a letter. It doesn't have to be complicated, intense or aggressive. Here's a sample letter. Generally, you want to say, hey, I've noticed this. I'm concerned about it.
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Get insurance! Renters insurance protects tenants' belongings, and that's a big deal. Tenant-landlord law doesn't make anyone responsible for paying for a tenant's damaged belongings, unless the landlord is somehow negligent. But what if there's a tornado? The landlord wouldn't have to pay for that. What if there's a fire? The landlord would also probably not need to pay for that. There are many instances where no one is liable for the destruction of property, and that's where insurance is so important. Some suggestions about starting to dig through renters insurance choices is here. Landlords can require tenants to have renters insurance, and should have homeowners insurance themselves.
- This article was helpful! It might be for you, too.
Where can I look this up?
It's clear in Wisconsin tenant-landlord law that tenants and landlords can hold one another liable for negligence.
- Wis. Stat. 704.07(2)a explains the landlord's duty to make repairs, and says that the landlord doesn't have the same duties to repair for repairs made necessary by the tenant's negligence. Later, the law seems to imply that negligence would mean damage due to the "acts or inaction" of a tenant.
- ATCP 134.08(5) says that no rental agreement may "relieve, or purport to relieve the landlord from liability for property damage or personal injury caused by negligent acts or omissions of the landlord."
However, in Wisconsin tenant-landlord law, there is no explanation of what, exactly, negligence is. It's established through case law, and so I don't have any statute or regulatory references for you. You can ask for some help looking things up at the Wisconsin State Law Library.
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Hi! Did you know that we are not attorneys here at the TRC? And this isn't legal advice, either. If what we've written here doesn't sound right to you, talk about it with someone you trust. For help finding an attorney, check out our attorney referral list.