Monday, November 2, 2009
Shelley Ross Saxer (Pepperdine) has posted to SSRN 'Am I My Brother's Keeper?': Requiring Landowner Disclosure of the Presence of Sex Offenders and Other Criminal Activity. Here is the abstract:
Under common law principles, landowners do not have a duty to protect or warn others against the criminal activities of others that occur on their premises. However, the modern trend in tort law has been to hold landowners liable for injuries occurring on their premises if the criminal activity is reasonably foreseeable and, in some jurisdictions, also imminent. While quite a bit of case law has developed over recent years as to a landowner’s liability for criminal acts that have occurred on the premises, a landowner’s liability for failing to disclose potential harm from criminal activity to prospective tenants or property buyers has not been established. It has also not been established whether a landlord has the duty to screen prospective tenants to protect other tenants from criminal behavior or a duty to work other tenants of known criminal propensities of an existing tenant. Finally, it is not clear whether a landlord or landowner may refuse to rent or sell to a particular individual or disclose concerns about the criminal propensity of certain individuals to other tenants or property owners without being subject to tort liability or violations of fair housing act statutes.
This Article explores the landowner liability issues of whether to disclose or warn others about future criminal activity that might occur on the premises in the future. Part II describes the historical development and recent trends in tort law of premises liability for the criminal acts of others. Part III addresses the issue of whether landowners have a duty to disclose or warn of premises susceptibility to criminal acts. Megan’s Law legislation, dealing with community notification about the presence of convicted sex offenders, raises a particular troublesome disclosure issue. Part IV examines landowner liability for refusing to rent or sell to individuals with criminal backgrounds or for disclosing to others the criminal propensity of a third party. The Article concluded by suggesting that landowners who are aware of reasonably foreseeable criminal activity against occupiers of their premises should have a duty to disclose this information to either prospective or existing occupiers, particularly when there is a potential danger of harm to children.