Renting responsibility for visitors to the apartment
The law of negligence is based on the duty of a person to act as a reasonable person and to take reasonable precautions to prevent damage that can and should be anticipated in the circumstances of the case.
Hence, an apartment owner owes a duty of care to a visitor to his apartment.
Liability arises whether the damage was caused due to an existing condition in the apartment or whether the owner took active action in the apartment which caused the hazard.
This obligation is based on the assumption that when the owner uses the apartment, he usually has the best ability to anticipate and prevent damage in the apartment, as well as to act to reduce the risks arising from activities carried out in the apartment.
All this is good and nice while the owner is the one who actually uses the apartment.
The question arises what is the responsibility of the parties when the owner rents the apartment to a tenant and as a result, he is no longer using the apartment?
The answer depends on the degree of affinity left to the landlord in the apartment, and it is measured, among other things, by the nature of the risk in question, the contractual relationship between the landlord and the tenant, the actual behavior of both and more.
In any case, both the landlord and the tenant have rights, affiliation, and responsibility for the apartment. The responsibilities of both are equal and both have an obligation not to be negligent in relation to the apartment and in relation to its possession.
The transfer of possession of the apartment to the tenant does not, therefore, detract from the landlord’s conceptual or principled responsibility towards visitors to the apartment for the existence of risks inherent in it, which may harm a person’s safety or security.
However, the transfer of possession of an apartment to a tenant raises a question in relation to the existence of concrete or specific obligation on the landlord in relation to the risks arising from the apartment and its surroundings.
This question is answered in accordance with the landlord’s affinity test in the apartment, and his ability and duty to anticipate the existence of risks inherent in it and which he must bear the responsibility of removing.
The fact that the apartment is in the possession of the tenant who is liable to the visitors to the apartment, does not lead to the conclusion that the landlord is not responsible.
However, the landlord’s responsibility will generally apply to matters related to the basic and fundamental safety of the apartment, insofar as the landlord should have known of their existence and was expected to remove them. This responsibility cannot be passed on to the other, and even if the tenant actually owns the apartment, the landlord remains responsible.
This of course excludes hazards that the tenant has created without the knowledge of the landlord and the landlord could not and should not have known of their existence.
The considerations regarding the scope of the landlord’s responsibility related to the division between objects which are inherently dangerous, and objects that only irresponsible use will make them dangerous. Thus, it is necessary to divide between hazards created before or after the lease.
Hazards that the landlord knew or should have known about and those he did not know and should not have known about their existence.
Even if it was agreed in the lease that the tenant takes responsibility for the damages, the rule is that no criminal liability can be transferred in the agreement between the parties.
The inclusion of such a provision in a lease agreement is indeed binding on the contractual level between the parties but is not necessarily criminally valid.