Dogs are in the spotlight lately. Governor Brown has recently signed into law a new act allowing statewide access for dogs in restaurants. There is also an ongoing debate of a too flexible and uncontrollable approach of "service animals," proliferating in great numbers, especially in San Francisco, who are often confused with rigorously trained guide dogs. San Francisco also now amended its Health Code, by adding Article 39, which codified a "commercial dog walker," which is in effect since April 21, 2013. How all these developments affect the landlord-tenant relationship?
While "harboring of pets is . . . an important part of our way of life" (Lundy v. Cal. Realty, 170 Cal.App.3d 813, 821 (1985)), a dog harbored on property poses liability questions to every person somehow related to either the dog or the property. Tenants can be responsible for the dogs they own or control. Landlord can be liable for someone else's dogs they failed to disclose as dangerous. There are, of course, some exceptions.
How a landlord would prove barking? By introducing a sound recording into evidence. Wilms v. Hand, 101 Cal.App.2d 811 (1951). [In an action to restrain a nuisance consisting in the annoyance and discomfort caused plaintiffs by the barking of dogs harbored by defendants, the court did not err in permitting the introduction of a sound machine recording of the barking of the dogs on a typical day.]
State's Dog Law Re: Public Access.
The newly adopted state law increases the scope of places where a dog owner can bring a dog. While it does not change the rules of a dog-related liability, it certainly increases the frontline of exposure to an accident, and the pool of potential defendants. It would be not only the dog owner, but also the one who permitted that dog owner to enter the premises with the dog, and, possibly, the one who failed to adequately prepare the premises to accommodate these new kind of visitors, or failed to implement appropriate accident-prevention measures.
And a higher standard of care is imposed on the property owners. Restaurant operators and their lessors are invited to read the case Portillo v. Aiassa, 27 Cal.App.4th 1128 (1994), which distinguishes Ucello and Lundy's "actual knowledge" duty requirement, because those cases involved "a family pet kept in a single-family residence," rather than dogs kept at places open for public access (a guard dog in Portillo). Property owner's mere knowledge of dog's presence, not knowledge of dog's propensities, was found enough to expect such owner to have posted warning signs as a standard of reasonable care. But if the sign is installed by a tenant, it may impose knowledge of dog's dangerous propensity on the landlord (Id.)
Portillo limits Uccello to apply only to single family residences, distinguishing it from business places open for public access. A multi-unit apartment complex will more likely be treated as a closely positioned set of single-family residences (akin condos in Cody F.), but an argument can be made that such mutli-units are businesses open for public access, if, for instance, there are recreational or guest areas. Owners of properties with such areas should expect a heightened duty of care. If the common areas are managed by an HOA, it is considered a "landlord," responsible for those commonly used areas. Frances T. v. Village Green Owners Assn., 42 Cal.3d 490, 499 (1986).
And the duty even expands furthermore when such landlord initiates an eviction. Under these circumstances, the landlord can be held obligated to inspect and to learn about property's dangerous conditions. Stone v. Center Trust Retail Properties, 163 Cal.App.4th 608 (2008). This rule also applies differently, with a lower standard of care, to evictions of single-family houses, especially if done by a successive landlord (in this case, a bank who took title through foreclosure): Martinez v. Bank of America, 82 Cal.App.4th 883 (2000).
Your options and available strategies will depend on your case's particular facts. If you are currently in a similar situation of being exposed to premises liability, or liability in connection with dogs or other animals deemed actually or potentially dangerous, and need to learn more about your rights and obligations, make your first step toward taking control over the circumstances, and call my office at (415) 987-7000. I will be glad to assist in guiding you through the jungle. The only thing you can't afford is to stay put and uninformed. My office provides a confidential assessment of your particular scenario, free of charge, and I will share with you the results of the analysis along with my thoughts on available solutions.
While "harboring of pets is . . . an important part of our way of life" (Lundy v. Cal. Realty, 170 Cal.App.3d 813, 821 (1985)), a dog harbored on property poses liability questions to every person somehow related to either the dog or the property. Tenants can be responsible for the dogs they own or control. Landlord can be liable for someone else's dogs they failed to disclose as dangerous. There are, of course, some exceptions.
A landlord may avoid liability for a tenant's dog attacking a neighbor. Chee v. Amanda Goldt Property Management, 143 Cal.App.4th 1360 (2006). A landlord may also escape liability for a neighbor's dog attacking a tenant. Wylie v. Gresch, 191 Cal.App.3d 412 (1987) [Landlord was not liable to a tenant, who was the minor victim of a neighbor's dog attack, for failure to warn because the existence of neighbor's vicious dog was easily discoverable, and a danger one could generally have expected to encounter.] "A landlord is not an insurer of a tenant's safety, even from dangers which come onto the land." Id. at 423.
A close rule is stated in a neighbor-to-neighbor dog case, Cody F. v. Falletti, 92 Cal.App.4th 1232, 1236 (2001): "Residents of a common interest subdivision may be close neighbors, but they are not their brother's keeper when it comes to policing activities on private property."
A close rule is stated in a neighbor-to-neighbor dog case, Cody F. v. Falletti, 92 Cal.App.4th 1232, 1236 (2001): "Residents of a common interest subdivision may be close neighbors, but they are not their brother's keeper when it comes to policing activities on private property."
Similarly, a landlord is under no duty to inspect a premises for the purpose of discovering the existence of a tenant's dangerous animal, it is only when the landlord has actual knowledge of the animal, coupled with the right to have it removed from the premises, that a duty of care arises. Yuzon v. Collins, 116 Cal.App.4th 149 (2004). The element of landlord's ability to remove the animal is important. In Uccello v. Laudenslayer, 44 Cal.App.3d 504 (1975), landlord was found capable of removing the dog by terminating the tenancy. But see at the end of this post, analysis of the Portillo case, limiting Uccello.
It may seem to be an easy thing to say in 1975, in Stanislaus county, but there is a similar case from 1995 Los Angeles: Donchin v. Guerrero, 34 Cal.App.4th 1832 (1995). Donchin case notwithstanding, it is fair to say that evicting a comparable tenant today in a rent-controlled municipality would be a more challenging project that simply terminating a month-to-month lease. You will need a "just cause." See if your area's rent ordinance provides for an eviction under the grounds of nuisance, waste, or impermissible use of the property. San Francisco Rent Ordinance does: 37.9(a)(2) [violation a lawful obligation or covenant of tenancy], 37.9(a)(3) [nuisance or waste], and 37.9(a)(4) [use of the property for illegal purpose], and with the latest changes in dog law, potential liability increases.
City's Dog Ordinance.
City's Dog Ordinance.
With the commercial dog walking now coming into focus, as it recently became a recognized commercial activity, tenants who walk dogs for profit increase their exposure for potential eviction. Dog walking is not only recognized on paper by the ordinance cited earlier in this post, but already by application. Several public access areas are adopting rules for commercial dog walkers, distinguishing them by the amount of dogs walked, and treating such walkers differently from owners walking their own dogs. Below is the picture of a sign installed at the entrance to Park Presidio. Note its code citation at the bottom, this is a different dog altogether, Title 36 of the Code of Federal Regulations, to which is now a new section added, 1002.6, for commercial dog walking.
The landlords are not expected to be far behind. Assuming this commercial activity has anything to do with the property (as it may easily be an independent project done entirely off-premises), being now recognized on the federal and city levels and even licensed, it becomes a double-edged sword: if a tenant is licensed, the fact of commercial activity is not disputed and it is up to provisions of the lease if it can be allowed on the property, see Section 37.9(a)(2); if a tenant is unlicensed, then the landlord might consider if the property is used for illegal purpose, under Section 37.9(a)(4).
And the old nuisance or waste claims, although existed before the dog-walking ordinance, will be easier to plead against a commercial dog walker (again, assuming that the activity has any relation to the property, like dog-sitting). Nuisance or waste can be associated with the dogs, because of the barking, fleas, and the damage dogs do to the property when their unscrupulous owners keep those dogs locked inside for long hours and without a walk. Since a dog is personal property [People v. Fimbres, 107 Cal.App.Supp. 778 (1930); Dreyer v. Cyriacks, 112 Cal.App 279 (1931)], the nuisance or waste caused by a dog can be attributed to the person in control, such as a dog-sitter.
And the old nuisance or waste claims, although existed before the dog-walking ordinance, will be easier to plead against a commercial dog walker (again, assuming that the activity has any relation to the property, like dog-sitting). Nuisance or waste can be associated with the dogs, because of the barking, fleas, and the damage dogs do to the property when their unscrupulous owners keep those dogs locked inside for long hours and without a walk. Since a dog is personal property [People v. Fimbres, 107 Cal.App.Supp. 778 (1930); Dreyer v. Cyriacks, 112 Cal.App 279 (1931)], the nuisance or waste caused by a dog can be attributed to the person in control, such as a dog-sitter.
How a landlord would prove barking? By introducing a sound recording into evidence. Wilms v. Hand, 101 Cal.App.2d 811 (1951). [In an action to restrain a nuisance consisting in the annoyance and discomfort caused plaintiffs by the barking of dogs harbored by defendants, the court did not err in permitting the introduction of a sound machine recording of the barking of the dogs on a typical day.]
State's Dog Law Re: Public Access.
And a higher standard of care is imposed on the property owners. Restaurant operators and their lessors are invited to read the case Portillo v. Aiassa, 27 Cal.App.4th 1128 (1994), which distinguishes Ucello and Lundy's "actual knowledge" duty requirement, because those cases involved "a family pet kept in a single-family residence," rather than dogs kept at places open for public access (a guard dog in Portillo). Property owner's mere knowledge of dog's presence, not knowledge of dog's propensities, was found enough to expect such owner to have posted warning signs as a standard of reasonable care. But if the sign is installed by a tenant, it may impose knowledge of dog's dangerous propensity on the landlord (Id.)
Portillo limits Uccello to apply only to single family residences, distinguishing it from business places open for public access. A multi-unit apartment complex will more likely be treated as a closely positioned set of single-family residences (akin condos in Cody F.), but an argument can be made that such mutli-units are businesses open for public access, if, for instance, there are recreational or guest areas. Owners of properties with such areas should expect a heightened duty of care. If the common areas are managed by an HOA, it is considered a "landlord," responsible for those commonly used areas. Frances T. v. Village Green Owners Assn., 42 Cal.3d 490, 499 (1986).
And the duty even expands furthermore when such landlord initiates an eviction. Under these circumstances, the landlord can be held obligated to inspect and to learn about property's dangerous conditions. Stone v. Center Trust Retail Properties, 163 Cal.App.4th 608 (2008). This rule also applies differently, with a lower standard of care, to evictions of single-family houses, especially if done by a successive landlord (in this case, a bank who took title through foreclosure): Martinez v. Bank of America, 82 Cal.App.4th 883 (2000).
Your options and available strategies will depend on your case's particular facts. If you are currently in a similar situation of being exposed to premises liability, or liability in connection with dogs or other animals deemed actually or potentially dangerous, and need to learn more about your rights and obligations, make your first step toward taking control over the circumstances, and call my office at (415) 987-7000. I will be glad to assist in guiding you through the jungle. The only thing you can't afford is to stay put and uninformed. My office provides a confidential assessment of your particular scenario, free of charge, and I will share with you the results of the analysis along with my thoughts on available solutions.
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