The general rule regarding landlord liability is that a landlord “is not liable to his lessee or to others on the land for physical harm caused by any dangerous condition, whether natural or artificial, which existed when the lessee took possession.” Restatement (Second) Torts 356.
Although it certainly appears from the plain language of this rule that a lessee or tenant may not have a case against their landlord if they are injured on rental property, there are exceptions to this rule.
Restatement (Second) Torts 358 is such an exception and provides as follows:
A lessor of land, who conceals or fails to disclose to his lessee any natural or artificial condition involving unreasonable risk of bodily harm to persons upon the land, is subject to liability for such harm caused thereby to the lessee and others on the land with the consent of the lessee or a sublessee after the lessee has taken possession, if
(a) the lessee does not know of the condition or the risk involved therein, and
(b) the lessor knows of the condition and realizes the risk involved therein and has reason to believe that the lessee will not discover the condition or realize the risk.
Restatement (Second) Torts 358; See also Restatement (Second) of Property, Landlord & Tenant 17.1 (emphasis added).
Relying on these Restatements for guidance, the Hawaii Supreme Court held that an “owner-lessor” has a “duty to warn the lessee of a known hazardous condition…” Kole v AMFAC, Inc., 69 Haw 530, 532-33 (1988). This is the current Hawaii law.
In addition to the landlord’s duty to warn tenants or lessees of dangerous conditions on their property, Landlords may also owe a duty to eliminate the risk of harm foreseeably caused by the dangerous condition. The Hawaii Supreme Court explained this landlord duty and premises liability as follows:
In our view, the substance of our many cases, dealing with possessors of land, and their duty toward persons using the land, is that, if a condition exists upon the land which poses an unreasonable risk of harm to persons using the land, then the possessor of the land, if the possessor knows, or should have known of the unreasonable risk, owes a duty to the persons using the land to take reasonable steps to eliminate the unreasonable risk, or adequately to warn the users against it.
Corbett v. Association of Apartment Owners of Wailua Bayview Apartments, 70 Haw. 415, 417 (Hawaii,1989)(emphasis added).
Accordingly, based on our examination of this issue, we believe that a landlord will be held to a duty to a tenant or lessee to make a known dangerous condition on the property safe or to warn a tenant about a known dangerous condition. If the landlord fails to meet this duty, then the landlord risks liability. For a discussion of our Real Estate Litigation Practice click the following link, Real Estate Litigation.