Several years ago a lawyer called me who was representing a property owner who had been sued by someone who got injured on the owner’s property. The owner hadn’t done much maintenance, preventive or corrective, and the injury resulting from that lack of maintenance brought about the lawsuit. In what seemed to me like a desperate attempt to stave off a judgment, the lawyer ordered a book I sold at the time, Preventive Maintenance for Apartment Communities. The book consisted of a list of what maintenance to do when. Follow that and do the repairs that the inspection reveals, and you have done preventive maintenance, and liability for inadequate repairs disappears. But only sometimes.
Ordering the book likely was the attorney’s effort to show that the property owner had reformed his negligent ways and now took more responsible care of his property. How buying a book after the fact showed lack of negligence passed me by, but I gladly took the order.
It takes very little for a property owner to end up on the paying end of a lawsuit. For want of even a screw, a property investment could be lost.
The damage and lawsuit resulting from a lack of such a little thing as a missing screw can and will bankrupt a property owner. It falls under the “Constructive Knowledge” principle. That’s a legal terms for what a person who applies reasonable care should have known. For example, suppose on the front door of an apartment building of a door lock was missing a screw so it didn’t properly lock the door. An owner should have known and would be liable for crimes and injuries to tenants resulting from the broken lock. Lawinsider.com explains, “constructive knowledge may be established by circumstantial evidence showing that: (1) ‘the dangerous condition existed for such a length of time that in the exercise of ordinary care, the premises owner should have known of the condition’; or (2) ‘the condition occurred with regularity and was therefore foreseeable.’”
Witness the case in Chicago where 1235 North Shore, LLC and Rick Olsen ended up paying $800,000 because a tenant was sexually assaulted after the assailant accessed the building by walking through three exterior and interior doors after going through a sidewalk metal gate missing a lock. The owner should have known.
Bad guys look for easy marks to do whatever criminal activities they plan to engage in. They try doors and gates to test for broken, unlocked windows, doors without locks, or other easy ways of access so they can come back at a time more convenient to do their dirty work.
How can owners protect themselves? They make a plan and carry it out. Many owners, both residential and commercial, don’t deal with repair issues until something breaks and someone complains, relying on complaints for notice that something doesn’t work as it’s supposed to. How much cheaper and better PR it is to do maintenance checks at least every three months and make repairs before the lack of repairs results in problems.
That kind of maintenance has the advantage of preserving the physical integrity of a building, saving money in the long run. Mostly it involves walking around and through the property using a checklist to discover potential problems before they become expensive. The result of preventive maintenance is corrective maintenance.
Corrective maintenance is nothing more than fixing things that are broken or otherwise require attention. Repairing leaky faucets, broken windows, wonky HVAC, and balky locks fall under this category, those same calls you get from tenants saying something needs fixing.
Routine maintenance is the scheduled stuff. (The definitions for it and Preventive Maintenance can be reversed.) Cleaning the gutters once or twice a year, picking up litter in common areas, lawn mowing, parking lot striping, and fence painting all fall under routine maintenance. Most important to survey are items that could be safety and security issues such as broken or non –existent door and gate locks and unlockable, unlocked windows, loose handrails, and broken steps. It cuts down on corrective maintenance costs. But it can be a major budget item, especially if regular maintenance has been ignored until it costs considerably more than replacing a 50-cent screw. In a commercial building, for example, routine maintenance can swallow up 18 percent of the budget, but residential properties may not get the same daily use by numerous people that commercial buildings do.
Why don’t property owners do preventive maintenance and routine maintenance? The excuses are often such as “I don’t have time,” “It costs too much,” “I just never think about it,” or maybe “that’s what my manager’s supposed to do.” Then why didn’t your manager do it? Vital to remember is that property owners bear responsibility for the acts of their agents and employees. If that agent or employee fails to maintain the property, it’s the owner’s responsibility. Owners can’t absolve themselves of responsibility by blaming someone whose work should have been checked.
Preventive maintenance means spending a little now to save more later. It has the additional advantages of first, showing tenants you are on the ball, and second, giving you the opportunity to inspect your properties for not just repair issues but tenant issues. It’s interesting what you see when you notice how and what your tenants are doing, isn’t it? Best of all, it maintains and improves the value of your investment.
Just as important for any work done on a property: document everything, date, time, and work done. Leave nothing to memory. In the event someone sue for an injury on your property, you can provide evidence that you had made any repairs necessary for proper maintenance of your property. No, it won’t always be entirely sufficient proof in a lawsuit, but will contribute to proving lack of culpability.
Take the time, put it on your calendar, and walk around your property with a checklist of things that could require repair. Wiggle handrails, check the locks, look for leak evidence, both roof and plumbing, and take care of little things before they result in a lost property for want of a screw.
For Want of a Nail
For want of a nail, the shoe was lost.
For want of a shoe, the horse was lost.
For want of a horse, the rider was lost.
For want of a rider, the message was lost.
For want of a message, the battle was lost.
For want of a battle, the kingdom was lost.
And all for the want of a horseshoe nail.
