I ran across this disturbing story on the Interwebz related to the horrible killings in Santa Barbara last year:
A tearful mother of a college student slain in a rampage outside Santa Barbara last year said Tuesday that she and the parents of the first victims sued the county sheriff and other parties to prevent future tragedies.
You can’t help but feel sorrow for Kelly Wang and the families of other victims in that tragedy. There’s no question that the killer, Elliot Rodger, was mentally unstable and dangerous.
But… the lawsuit contends that landlords — and by extension, their property managers — have a duty to screen for disturbed individuals, and I have to say I’m wondering about that.
Background and Lawsuit Claims
The background to this terrible story is just horrifying and chilling. Elliot Rodger was a 22 year old college student who went on a killing spree because women rejected him, and posted a video talking about a ‘Day of Retribution’. He stabbed three people in his apartment, then went on a shooting rampage killing another three people and wounding some 13 others, before killing himself. One of the three stabbed in the apartment was George Chen, the son of the woman filing the lawsuit.
So the lawsuit claims that the landlord was at least partially responsible:
The lawsuit said the apartment management company and the Sheriff’s Department were negligent because they knew ignored numerous warning signs that Rodger was violent and unstable.
The lawsuit contends that authorities, and the apartment building and its owners, Asset Campus Housing, a Texas-based company that provides student housing around the nation, failed to check Rodger’s online postings in which he spouted venomous comments about women and others and bemoaned his virginity.
“As far as we can tell, the only backgrounds they did was to see if Elliot Rodger could pay,” Attorney Patrick McNicholas said.
The suit said that after Rodger moved into the Capri complex in 2011, he insulted and clashed with a string of roommates and exhibited bizarre behavior, yet the apartment owners failed to conduct reasonable background checks before assigning Hong and Wang as his roommates. The suit also says the complex failed to warn them that “Rodger had had serious conflicts with his previous roommates and was not only racist but also potentially violent and dangerous.”
Fact is, the lawsuit against the county and the Sheriff’s Department will fail and may be thrown out. The Supreme Court has ruled time and again that the police have no duty to protect people. Maybe they’re hanging their hats on the fact that a mental health worker saw Rodger’s videos and contacted the police, but… I can’t imagine a jurisprudence of policing that makes cops liable for not investigating someone who has committed no crimes.
So that leaves the theory that the apartment owners have a duty to ensure that its renters are not dangerous, mentally disturbed individuals.
Probably Fails… But…
As I sit here, I can’t imagine a scenario in which the landlord owes a duty to screen tenants for mental problems. If posting diatribes on social media equals crazy, then a whole lot of folks I know on Facebook need to be investigated. And what is “mentally disturbed” for one person may not be for another; this is an area where there are very few, if any, black lines.
At the same time, this is California we’re talking about here. And there is a sort of sense that landlords do owe *some* duty to protect tenants.
At issue is the plain fact that landlords are not exactly the most beloved of groups. They’re painted as greedy sonsabitches who only care about a renter’s ability to pay, and nothing else. While property managers and agents who do some leasing recognize that isn’t true — landlords, their agents, and their managers do run background checks, do care about not having a psycho tenant, etc. — the average person on the street likely does not.
Furthermore, background checks are really checking into government records: conviction, arrest records, maybe restraining orders, etc. The idea that a landlord has to check the social network postings of tenants and potential tenants and assess whether that person is or could be a danger to himself and others is… well, wacky.
Having said all of that….
Fiduciaries and Ethical Codes
What makes me wonder is whether the property manager or the REALTOR might owe the landlord a duty to do that sort of screening. Because fiduciary duty.
See, the landlord-tenant relationship is a strictly contractual relationship. There is no fiduciary relationship between the two.
The client-REALTOR relationship, however, is very clearly a fiduciary relationship, as is the client-property manager relationship. So the question would be whether the property manager/leasing agent owes the landlord a higher level of duty, which might include things like monitoring an applicant or a tenant’s social media activities to make sure there isn’t a crazy nutcase living in the client’s property.
In that context, the Code of Ethics of Property Management Experts reads:
Article 4. DUTY TO TENANTS
The Property Manager shall treat all Tenants professionally when applying for, living in, and vacating a managed residence. The Property Manager shall hold in high regard the safety and health of those lawfully at a managed property. [Emphasis mine]
And the National Association of Residential Property Managers has a Code of Ethics that reads in part:
Article 1: RESPONSIBILITY TO PROTECT THE PUBLIC
It is the responsibility of the Property Manager to protect the public against fraud, misrepresentation, and unethical practices in property management.
1-1 The Property Manager shall endeavor to eliminate in the community, through the normal course of business, any practices which could be damaging to the public or bring discredit to the profession.
Again, I don’t believe that the above includes protecting the landlord and his other tenants from the possibility that one tenant is a psychotic danger to himself and others. But laying out as the actual title “Responsibility to Protect the Public” does make one wonder.
Note that under Article 11 of the REALTOR Code of Ethics, the REALTOR is bound to follow the “standards of practice and competence which are reasonably expected in the specific real estate disciplines in which they engage” which includes property management.
Is there a violation of either fiduciary duty to the landlord, or a violation of the Code of Ethics to fail to identify, monitor, and notify the landlord (and other tenants) about a possibly deranged or criminal tenant? Should there be?
If Elliott Rodger wasn’t a murderous psychopath, but an arsonist who had posted all kinds of YouTube videos talking about how much he wants to burn down buildings, and then actually burns down the apartment complex, should the REALTOR have known that or investigated that?
I’m thinking “No f’in way”. Property managers and REALTORS are property managers and REALTORS, not psychologists or private investigators. Fiduciary duty does not extend so far as to require that a leasing agent check into the online activities of an applicant.
But then… we are talking about California courts here…
Such a sad story. Such a bad case. But as the legal maxim goes, bad cases make bad law….