By Robert Griswold
Question: I am an apartment manager, and my tenant called me on a Sunday night to tell me that she just arrived back from a four-day trip and found the refrigerator had broken down and all the food was spoiled. The next day, I ordered the tenant a new refrigerator, which was delivered on Tuesday. Now she wants me to pay for her spoiled food. I would like to know if I am responsible for her spoiled food? As the refrigerator is under her care and use, should she be responsible?Landlords' attorney McKinley replies:
From your question, it appears that the tenant is renting the refrigerator from you, either as part of the apartment rental, or by a separate agreement. In either event, this would make the maintenance of the refrigerator your responsibility. However, it is the tenant's duty to notify the landlord of any necessary maintenance requests, including fixing the refrigerator. As it is likely that all the food was spoiled by the time she notified you of the broken refrigerator, you would probably not be responsible for the replacement of the spoiled food. You had no way of knowing that the refrigerator had broken, but you replaced it as soon as you were notified of the problem.
In addition, most residential leases contain a paragraph stating that the tenant's personal property, in this case food, is not insured by the landlord, and that the landlord is not responsible for any damages to a tenant's personal property. This would further limit your liability for any damage to personal property, except in the case of negligence - but as previously stated, you had no way of knowing the refrigerator needed maintenance.
If your tenant does not accept your response, make sure you have documented all your actions and the timeline, in case she files a Small Claims action. Keep in mind that even though you are not legally required to pay for the cost of replacing the spoiled food, you may want to make some offer as a gesture of good customer service to your tenant.
Tenants' attorney Kellman replies:
Because you are providing the refrigerator, you must keep it in good working order and are responsible for damages it may cause. McKinley is right when he says that you are generally not liable for damages occurring based on some defect (including a bad appliance) about which you are not aware. After all, how can you fix a problem you do not know about?
That being said, the tenant will claim that she has a right to depend on the refrigerator functioning while out of the unit for a few days. It is true that the tenant must notify you of any defects, but if the refrigerator suddenly breaks down without warning, you and the tenant become innocent victims of the mechanized age.
When the landlord and tenant are faced with the prospect of both being equally innocent for a loss, can you guess who a judge will probably side with? Yes, although it seems unfair, it will probably be the tenant because she doesn't own the property and you are more able to maintain the property and cover losses. Also, if there was any warning of a bad appliance in the past, that will just strengthen the tenant's case to have the food replaced.
The advice McKinley gave to resolve the matter should be well taken. While you may feel it would be unfair to pay for any lost food (and you may be right in feeling so), it will probably be cheaper and better in the long run if you make an offer to at least share in the cost.
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