3

Part of my lease agreement is to cooperate in keeping the communal trash area tidy. Someone in my building, unknown who, is putting trash directly in the can outside rather than bagging their gross food trash. Animals are getting into the cans, and the city (Wheeling, WV) has sent a notice to the landlord saying they will be fined if trash is not properly bagged. The landlord has now told us that if they are fined by the city, they will split the fine between the 6 units in our building. What do I do? I’m not the one making the mess, and despite this warning, people are still putting unbagged trash in the bins. Can the landlord charge everyone like this without proving who is causing the problem? What am I supposed to do? I haven’t done anything wrong, I actually just moved in, and now I will probably be charged a fine of unknown amount, possibly every week? Short of going into the trash bin and cleaning up after my neighbor, do I have any options to avoid paying this fine?

1
  • What jurisdiction? rules on such things may vary May 17 at 23:57
3

Short Answer

Generally, a landlord could validly have a term in a lease requiring the tenants collectively to indemnify the landlord for any fine, penalty, or expense arising from the conduct of the tenants, their licensees or invitees.

If there is such a term, your only remedy may be to sue the co-tenant engaged in misconduct for contribution.

When Can Landlords Be Indemnified?

Usually, a provision indemnifying the landlord against the landlord's own intentional acts, reckless acts, willful and wanton acts, gross negligence, or bad faith is void as against public policy, but a provision indemnifying a landlord for the act of another for which the landlord has only vicarious liability as a landowner, and for strict liability offenses and torts, is usually valid. The municipal fine in question appears to be one for which the landlord has only vicarious liability will not proof that the landlord or even an agent of the landlord who is not an agent of a tenant took that act to impose liability.

There is a split of authority over when the tenant may be held responsible for (either by waiving liability or indemnifying the landlord) for merely simple negligence by the landlord or an agent of the landlord who is not an agent of the tenant. Some states allow it. Some do not. Many allow it in some cases (e.g. private party landlords), but not in others (e.g. public entities). A 50 state survey of the law of indemnification in the U.S. with statutory and case law citations can be found here.

There is no indication, however, in this OP that the landlord engaged in any conduct that caused the landlord to incur the fine. The conduct was apparently engaged in by one of your fellow tenants.

This Is Not A Prohibited Contractual Penalty

In general, a private contract may not impose an arbitrary penalty or fine that does not meet the standards necessary to be considered a form of liquidated damages.

But, indemnification of a third-party imposed penalty or fine, does not violate the public policy against having such penalties or fines imposed by a private contract. An indemnification provision is a compensatory contractual provision as between the landlord and the tenant, not a fine or penalty created by the contract.

Many government imposed penalties or fines, however, do require that the person fined engaged in an intentional act, or reckless act, or willful or wanton act, or grossly negligent act, or engaged in bad faith conduct that cannot be indemnified by a tenant. But that does not appear to be the case in the OP.

Collective Responsibility Lease Terms Are Usually Valid

More generally, a lease may impose collective responsibility on all co-tenants combined. This is the default rule when all tenants are on a single lease.

But it is unlikely that it would violate public policy even if applied to multiple tenants in the same building or complex with separate leases. Partnerships and joint ventures allow joint and several liability, and the circumstances, e.g. units that are part of a single HOA or co-operative apartments, often do so implicitly, so public policy arguments against this kind of much less common arrangement are weak.

Anywhere that joint and several liability is permitted, a fortiori, proportionate liability should also be permitted.

The Necessity Of A Lease Term For These Remedies

Furthermore, none of these obligations can arise unless the lease says that these remedies are available to the landlord. If the lease doesn't create the obligation to indemnify the landlord for trash bagging fines on a joint and several or proportionate basis with tenants on other leases in the same building or complex, then the landlord can't impose this amount upon you. I've interpreted the language below from the OP to mean that;

Part of my lease agreement is to cooperate in keeping the communal trash area tidy.

But, in the absence of lease language to the contrary specifying a broader remedy, the landlord can only impose liability on you for personally (or through your guests) for failing to do so.

Remedies Against Co-Tenants

Your remedy, if you are blameless and know who is at fault, would be to seek compensation in the form of contribution from the at fault party in small claims court from an offending co-tenant, or via a cross-claim against a co-defendant if the landlord brought suit to enforce the term against the tenants.

2
  • 1
    Can you cite a source that says the landlord is permitted to hav such a provision? Is ther any case law? In what jurisdiction would this be permitted? May 18 at 0:00
  • 1
    Indemnification terms for conduct of tenants giving rise to fines is common in almost every U.S. jurisdiction in leases (especially triple net leases). See sample lease language at lawinsider.com/clause/indemnification-of-landlord Joint and several liability of co-tenants on a single lease is the norm. See, e.g., offcampus.students.gwu.edu/joint-and-several-liability Also, partnerships and joint ventures allow joint and several liability, and the circumstances, e.g. units that are part of a single HOA, often do so implicitly, so policy arguments against this are weak.
    – ohwilleke
    May 18 at 16:17
1

The landlord cannot “fine” a tenant

Only governments can impose penalties. If the city fines the landlord, that is the landlord’s fine and they can’t make anyone else pay it. If the landlord believes that someone else committed the offence and they didn’t, then they should go to court and prove their innocence. Of course, they may still be liable for the offence even if someone else did it - vicarious liability is a bitch.

A contractural provision that required you to pay the landlords fines would be void for public policy reasons - you do the crime, you do the punishment: you can’t contract it out. Insurance can and is offered that covers defendants- covering legal costs is ok, covering fines is problematic and may or may not be legal depending on jurisdiction.

Now, if a tenant caused damage to the landlord by breach of contract (e.g. by not following the rules about bagging garbage) they could recover that but only by proving which tenant breached their contract (unless the tenants had contracted to be jointly liable) and damages would not extend to lawfully levied fines.

15
  • 1
    Could the rental contract hold the tenants liable for their share of the garbage disposal costs, and would such a fine be a part of those cosrs?
    – o.m.
    May 16 at 9:01
  • @o.m. Yes and no respectively
    – Dale M
    May 16 at 10:30
  • Thank you! If the landlord does try to charge us, what should I do? Just not pay? May 16 at 23:03
  • 1
    @DavidSiegel Safeway Stores v Twigger although an exception has been made, at least in Scotts law, for strict liability offences where the plaintiff was morally innocent following D Geddes (Contractors) Ltd v Neil Johnston Health and Safety Services Ltd
    – Dale M
    May 18 at 1:52
  • 1
    @ohwilleke it depends on the nature of the offence and whether the duty is delegable. If the landlord has a duty to ensure or take all reasonable steps to ensure that garbage is bagged, they are unlikely to have met that duty by just subcontracting it. They would need to have a process for monitoring and auditing that the tenants were performing the subcontracted duty. If they don’t, this is not the tenant’s offence, it’s the landlords. Alternatively, if the offence is of placing unbagged garbage in the bin then the landlord should defend themselves and should win because they didn’t do it.
    – Dale M
    May 18 at 22:07

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.