The “New” Dangerous Condition
A Landlord's Duty to Warn and Protect Continues
By Stephen D. Pahl and Karen K. McCay
Pahl & Mccay
160 West Santa Clara Street, 14th Floor
San Jose, California 95113
408/286-5100 (phone); 408/286-5722 (fax)
Please understand that the information discussed in this Article is general in nature and is not intended to be legal advice. It is intended to assist owners and managers in understanding this issue area, but it may not apply to the specific fact circumstances or business situations of all owners and managers. You may need to consult applicable state and local laws. For specific legal advice, consult your attorney.
On September 24, 2004, Assembly Bill 488 was signed into law, requiring the Department of Justice to make specified information about certain sex offenders available to the public via an internet web site by July 1, 2005, and to update that information on an on-going basis. In January 2005, the Department of Justice went live with the website, resulting in numerous inquiries from residents to landlords asking "what was the landlord going to do" about a registered offender living on the property. As discussed below, there is very little a landlord can do at this time without risking fairly significant penalties. This article discusses the history of the applicable laws, the landlord's continuing duty to warn and protect residents against known dangers and some practical information on responding to resident inquiries. Please note that this article contains only general information with respect to the implications of Megan's law. We encourage all owners and managers to contact their counsel if they encounter a registrant at their properties
The sexual assault and murder of seven-year-old Megan Kanka in 1994 sparked the enactment of sex offender registration and notification statutes in several states. Although California already had a registration law on its books, in 1997 the law was amended to conform with the Megan's Law passed by the Federal Government. California's Penal Code Section 290 et. seq. requires convicted sex offenders to register with law enforcement officials in their residential communities. The law permits the police to disseminate identifying information of a sex offender if the police believe a person may be at risk from that offender.
In 1998, the California legislature passed S.B. 1989, codified as Civil Code Section 2079.10a., requiring the following notice be included in every lease or rental agreement for residential real property and every contract for sale of real property as of July 1, 1999:
Notice: The California Department of Justice, sheriff's departments, police departments serving jurisdictions of 200,000 or more and many other local law enforcement authorities maintain for public access data base of the locations of persons required to register pursuant to paragraph (1) of subdivision (a) of Section 290.4 of the Penal Code. The data base is updated on a quarterly basis and is a source of information about the presence of these individuals in any neighborhood. The Department of Justice also maintains a Sex Offender Identification Line through which inquiries about individuals may be made. This is a "900" telephone service. Callers must have specific information about individuals they are checking. Information regarding neighborhoods is not available through the "900" telephone service.
Civil Code Section 2079.10a(b) further provides that:
Subject to subdivision (c), upon delivery of the notice to the lessee or transferee of the real property, the lessor, seller, or broker is not required to provide information in addition to that contained in the notice regarding the proximity of registered sex offenders. The information in the notice shall be deemed to be adequate to inform the lessee or transferee about the existence of a statewide data base of the locations of registered sex offenders and information from the data base regarding those locations. The information in the notice shall not give rise to any cause of action against the disclosing party by a registered sex offender.
While the preceding subsection eliminates any requirement that a landlord investigate or otherwise determine whether a registered sex offender is residing at a property, when an owner or property manager has actual knowledge that a registered sex offender is residing at the property, the landlord should take affirmative action to warn and protect his or her tenants especially since subsection (c) of 2079.10a specifically provides that nothing in 2079.10a "shall alter any existing duty of the lessor, seller or broker under any other statute or decisional law . . . ."
Duty to Warn and Protect against Known Dangers
It is a well-settled principle of law that a landlord has a special relationship with his or her tenants which gives rise to a duty of the landlord to use reasonable care for the tenants' protection. Although a relatively new development, landlords have a duty to protect tenants from injuries caused by the criminal acts of third parties. Since 1970, a landlord's duty to take reasonable steps to secure common areas of a premises against foreseeable criminal acts of third parties has become well established law in California.1 A landlord's liability is not limited to injuries resulting from criminal acts in common areas, but has been extended to criminal acts occurring in individual units.2 Key factors courts will consider when evaluating whether a landlord should be held liable to a tenant for failing to protect the tenant against injuries resulting from a criminal act include: the foreseeability of the harm to the tenant, the closeness of the connection between the landlord's conduct and the injury suffered, the moral blame attached to the landlord's conduct, the policy of preventing future harm, the extent of the burden to the landlord, and the consequences to the community of imposing a duty to exercise care with resulting liability for breach.3
So, What Should You Do?
By enacting the registration and notification statute, the California legislature has made a determination that registered sex offenders pose a foreseeable danger to children and other persons at risk. Although Section 2079.10a eliminates any duty of a landlord to investigate whether a tenant is a registered sex offender, landlords cannot turn a blind eye to this recognized foreseeable danger when presented with actual knowledge that a registered sex offender resides on a property. Warning tenants of a known registered sex offender places relatively little burden on the landlord and the prevention of a sexual assault on a child or other person at risk clearly justifies the minimal effort required to disseminate information of a known offender on a property.
Nothing in Section 2079.10a eliminates the duty of a landlord to warn and protect tenants of a foreseeable danger. Where an owner or property manager has actual knowledge of a known danger or hazard to his or her tenants, the landlord must take affirmative steps to warn tenants of the potential danger and protect them to the greatest extent possible. While this duty does not give a landlord the right to evict or discriminate against a registered sex offender, in fact, such action could subject the landlord to significant penalties under Penal Code Section 290.4 and the new statute Penal Code Section 290.46, the landlord should advise the police that there are children and/or other persons at risk at the property and request the police disseminate the information authorized by law to residents at the property relating to the registered sex offender in the community.
If the police are unwilling to disseminate the information, the most conservative practice would be for the landlord to advise tenants in its regular communications with residents if the landlord distributes a newsletter or other regular communication, or in a special notice of the presence of a registrant on the property. The resident notification letter should advise residents of the presence of an offender on the property and that the landlord cannot take any action against the offender (such as requiring him or her to leave the property) under the law. The notice should also advise tenants that their rental agreements prohibit them from harassing the registrant or otherwise interfering with the quiet enjoyment of the registrant.
When dealing with inquiries from residents, it is important to convey to them the limitations placed on you by the applicable statutes with respect to addressing their concerns. Let them know that the law specifically prohibits you from discriminating against registrants in housing and requires you to enforce the legal obligations of the lease agreement as to all residents. You may also note that the existence of an offender on your property is not a breach by the landlord of the lease agreement and does not give residents the right to terminate their lease. While you most likely will see a flurry of activity after the initial disclosure of a registrant on the property, a fact which is difficult to avoid with the new website, it is our experience that responding to resident inquiries in a straightforward and professional manner and advising them of the legal limitations placed on all landlords usually addresses their concerns.
We recognize that the notification and registration statutes create a very difficult situation for property owners and managers and there is a fine line landlords are now required to walk between warning and protecting their tenants and not discriminating against known offenders, which, again, is expressly prohibited by the statute. Because of the delicate situation the disclosure requirements place on landlords in these situations, we encourage property owners and managers to seek legal advice from their counsel when they learn a registrant is residing on their properties.
1. See Ann M. v. Pacific Plaza Shopping Center, 6 Cal. 4th 666 (1993).
2. See O’Hara v. Western Seven Trees Corp., 75 Cal. App. 3d 798 (1977).
3. See Sturgeon v. Curnutt, 29 Cal. App. 4th 301 (1994).