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Crime victims seeking big $ from owners.

Crime victims seeking big $ from owners

Owners and managers lately have been treated to some disturbing new stories about crime victims that file civil suits with high price tags against their landlord or managers...

Last week an upper East Side female resident who was raped in her apartment, at 77th Street and Second Avenue, filed a $6 million civil suit. She is seeking $5 million from the owners of her building, G&F Realty, for not properly lighting a backyard, and $1 million from the rental agent, Ziegler Realty, of 805 Third Avenue, for steering her to the building after requesting an apartment that would be safe for a single woman.

This suit follows a case, in Houston, in which a tenant was awarded $17 million, the largest judgement to date in a civil suit of this nature. The young woman, who was also a victim of a rape, sued the managing agent of the townhouse in which she lived. She charged faults in security and the manager's refusal to allow her to install a lock that could only be opened from the inside enabled the perpetrator to get into her apartment. This was the biggest such judgement yet. The management company is seeking a new trial.

Attorneys last week were divided on whether or not these cases are a growing phenomenon, but they agreed that news of tenant victories may lead other tenants to seek similar suits, and owners should be concerned about their exposure to such claims.

"There are more people bringing more law suits than before and as various people see successes in the paper they say |Hey, I should be able to make a case against a landlord,'" said Attorney Jay Failkoff, of Strook, Strook & Lavan.

Often, said Failkoff, the assailant is not found and there is no one around to "pay" for the crime, so the tenants seek relief from the landlord.

The case law in these types of suits, Failkoff said, has developed in such a way that a lot bears on whether or not the landlord had notice of any security problems and what measure if any was taken to correct them.

Unfortunately, Failkoff said, as soon as some landlords fix a problem in their building, someone destroys the installation. And this can happen over and over again.

"It's a difficult situation for landlords who are caring, legitimate landlords," he said.

Jeff Braun of Rosenman and Colin said he is not seeing an increase in these cases in his own practice, but we may be hearing about them more because cases with violent crimes and jury verdicts attract media attention.

"There are by statute, in the housing code, requirements the landlord must fulfill," said Braun.

These include: peepholes, mirrors in elevators, locks on units, and on the building. If someone can show the failure of the landlord to fulfill one or more of these, the landlord will most likely be held liable.

In addition, in New York, there is the "warranty of habitability," which states there are certain essentials to every lease, expressed or implied, and the courts in New York have stated security is an essential element in a lease, said Attorney Bob Payton, of Peckar & Abramson P.C. An owner, he said, could be held liable for violating that warranty.

Payton said he is aware of cases in New Jersey, where owners were held liable for inadequate lighting and improper lights, especially when the owner was on notice that was a problem.

"The law will definitely pose on the owner the responsibility to cure it," he said.

Payton said these suits are not new, but the asking and receiving amounts are getting higher. Often he said a tenant will be awarded deductions from rent payments and the cap would be the amount of the rent.

In the case of co-ops, said co-op, condo attorney Harold Lubell, the board has the same responsibility as the landlord because the board, in essence, has a landlord/tenant relationship with the shareholder. The interesting question, he said, is in the case of condos -- who should bear the burden? Should the risk be spread among the unit owner?

"...someone has a responsibility to the individual to provide reasonable means of security so the individual can feel comfortable," said Lubell.

"Reasonable", however, Lubell said, has a different meaning on Park Avenue than it does at 124th Street and Lenox Avenue.

A number of attorneys said the claim against the rental agent would be a little tough to prove because the duty between a tenant and an owner is much different than that of a rental agent and tenant who had a "one-shot deal relationship" with the tenant. They would also have to prove that the rental agent had knowledge of previous security problems in the building. "That seems a little more of a tenuous claim," said one attorney.

Insurance Implications

Bruce D. Guthart, executive vice president of Walter Kaye Associates, which insures residential buildings, said these cases have become more common in recent years and there are implications in the insurance field. Many insurers are withdrawing from underwriting this class of business, he said, because of the increase of exposure to risk, and the unpredictability of the loss factor. A large number of insurers, Guthart said, want to be involved in areas where the loss factor is predictable.

"The question becomes what should a building owner and manager do," said Guthart.

Building managers, Guthart said, should be sure they are covered under the owner's policy, and owners should get high liability limits. Owners, Guthart said, should buy $5 million to $10 million in limit as a minimum. But typically, he said, they only have a $1 million limit.

"It's important to get high amounts because many people are sued at high amounts."

Walter Kaye Associates, which insures 80,000 units plus Co-op City, offers buildings liability insurance with $20 million limit.

Where's the Weak Link?

"The best way to prevent exposure is to see they (these incidents) don't happen," said Ken Cohen, executive vice president of Century Operating Corporation of New York management company. "That may be a little difficult to do because you're not a law enforcement organization."

First, Cohen, said owners and managers need to do an assessment of the building's security -- what are its strong and weak points. Cohen said you can call your local precinct and they will provide you with some recommendations. You can also, he said, do a "common sense assessments" starting with all the entrances in the building. If it is a doorman building, he said, go over with the doorman his responsibilities in regards to entrances, checking locking devices, etc.

Adequate security, Cohen said, requires a participation of the building community staff and residents. Doormen and other building staff should be aware of their responsibilities to building security such as making sure all entrances to the building are secured. And buildings should be careful about who they hire.

"One should do their best to be selective in hiring of personnel," said Cohen. "One should make the best effort to check out the person without violating his rights."

With residents, Cohen said, there has to be an educational process. Residents should be advised to take precautions, including: Make sure who the visitor is before they let them up -- "don't just buzz in, and then ask; report if they see persons wandering in the hall; have their keys ready when the approach the building; and, especially for elderly people, ask a fellow resident to meet them downstairs if they are coming in late. And, he said, buildings should form security committees.

"People should not take the attitude |It's never happened in this building,'" said Cohen. "Let that be continued."

Security, Cohen concluded, should be up-front and visible. Obvious measures are important, such as fencing and lighting, and doors with alarms should carry stickers that say they are alarmed.

"The best thing about security is to advertise to a would-be-assailant that you do have security," said Cohen.
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Copyright 1991, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Title Annotation:civil lawsuits concerning safety and security of buildings
Author:Fitzgerald, Therese
Publication:Real Estate Weekly
Date:Oct 9, 1991
Previous Article:ESG + Mitsui try to bridge the gap.
Next Article:B. Altman's (as building) back in business.

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