We get regular questions for landlords and attorneys and this question comes from a concerned tenant who says the upstairs tenant fired a gun and the bullet came through the celling in the apartment below. Here is some guidance for landlords on how to handle this type of situation.
Here attorney Denny Dobbins provides his personal take, as a landlord attorney, on the information provided below by the tenant on what happened in a question-and-answer format based on Arizona law.
1. Question from the tenant
The tenant above me discharged a firearm into the floor and the bullet came through my ceiling.
Answer from Dobbins
The way this is worded raises the question of whether the discharge is accidental or intentional. My experience shows that the landlord’s duty to deal with such a matter does not matter if the shooting was accidental or intentional. However, if intentional you will see a landlord move swiftly to remove the tenant.
I had the police come out and file a report. The officer confirmed that it was a discharged firearm and filed it in the report. The tenants would not answer the door when the officer went up there to address them. However, I gave the officer the tag and car information of the tenants. I subsequently filed a complaint with the leasing office for an immediate termination of the tenants’ lease along with the pictures of the bullet hole, police report and picture of their car and tag.
Once the complaint has been delivered to the landlord, the landlord has a duty to investigate and to act accordingly. Regardless of the investigation, the non-shooting tenant has a right to be fearful when a bullet comes through the ceiling. Further, the non-shooting tenant has an absolute right to peaceful and quiet enjoyment of the property. The non-shooting tenant’s peace-and-quiet enjoyment has been obviously shattered and will continue to be shattered as long as the shooting-tenant remains upstairs. I would advise the landlord to evict the shooting-tenant or let the shooting-tenant out of his/her lease in some fashion – but to get rid of the shooting tenant immediately. It is better to lose a little rent, make the downstairs tenant happy, and avoid later liability or lawsuit. Leaving the shooting-tenant in the property puts too much liability on the landlord. And the landlord either knows about this liability, or should know. The landlord’s attorney should be advising the landlord to remove this shooting tenant. There is ample case law on this issue. In the future, if ANYTHING causing damage by this same shooting-tenant happens to anyone else on the property the landlord is looking at almost a strict liability situation for negligence in letting that shooting-tenant stay on the property. It would be an ugly situation for the landlord. No reasonable landlord wants this situation, and any knowledgeable attorney would so advise their landlord. Any good landlord, in my opinion, will find a way to get rid of the shooting-tenant. I do not know any judge that would allow that tenant to stay even if the shoot was accidental.
Can the leasing office withhold information about what they are doing to address this situation when the tenant fired a gun?
Yes, at least until the non-shooting tenant files a complaint in court over the matter due to a landlord’s refusal to remove the shooting-tenant. However, a good landlord would do everything they could to keep the non-shooting tenant informed of what is going on, and that landlord should move as quickly as possible to remedy the situation. Constant communication with the non-shooting tenant is key to assuring the non-shooting tenant that the landlord is taking the matter seriously and that they care about the non-shooting tenant. The non-shooting tenant knows the incident itself is not the landlord’s fault. But what happens now is in the landlord’s hands, and everyone in the community is watching.
What are my rights as the victim? I could have been killed had I been in that room at the time the tenant fired a gun.
The non-shooter’s rights are woven into my response above. There is nothing that covers this exact situation in the Arizona Residential Landlord and Tenant Act (and that is true of most situations), but 33-1311, 33-1312, 33-1324, 33-1341(7) [for this reason alone the landlord has a duty to remove the shooting-tenant] all apply. It is my opinion that if the landlord does not take action and remove the shooting-tenant that the non-shooting party has a right to damages against the landlord for basically forcing the non-shooting tenant to move to find a safe and peaceful place to live. Landlords are usually not dumb enough to not take care of the non-shooting tenant and to not remove the shooting-tenant.
Dobbins adds, “In the alternative, the landlord may just allow the non-shooting tenant out of the lease. Not the best idea. The moving tenant may want the landlord to pay the cost of moving and other damages, especially if the landlord refuses to remove the shooting-tenant, and the non-shooting tenant may well be entitled to such damages. As a landlord and for my landlord clients I would rather fight the battle removing the shooting-tenant rather than to fight the possible consequences of leaving the shooting-tenant at the property.
“Under the Arizona landlord and tenant act I would consider it unconscionable to force the non-shooting tenant to remain in his/her lease with the shooting tenant remaining on the property. The landlord may offer to allow the non-shooting tenant to relocate to another unit on the property. I would not accept that as the non-shooting tenant. The purpose of the lease has been frustrated, and the peaceful and quiet enjoyment of the non-shooting tenant has been destroyed. “
Note from the author: I have dealt with these types of matters in the past, and each incident is specific with its own unique set of facts. However, in every instance of a shooting, intentional or accidental, the landlord moved on the shooting party to remove them from the property.
About the author:
Denny Dobbins is a Mesa, Ariz. attorney who has represented landlords’ issues for more than 30 years.