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Updated almost 3 years ago, 12/20/2021
Wind Storm Damage to Car - Tenant requesting deductible be paid
One of the tenants in my duplex uses the driveway to park their 2 personal vehicles. During a significant wind storm, many small/medium branches came down into the driveway and out into the road from a large tree that sits on the edge of the driveway within my property. Some of the branches caused damage to one of car's windshield and hood. The tenant submitted a claim to their car insurance company which they will be covering. The tenant is requesting that I cover their $500 car insurance deductible. I want to handle this right. I've received conflicting opinions on whether or not to reimburse some or all of their deductible. This wouldn't be something that would be covered under my landlord policy, and my deductible is more than $500 anyways. Prior to the storm there was no known issue with the tree being dead or having any dead branches.
Of note, the tenant has a balance owed of $300 for rent. They have been paying late for several months now, and I put them on a bi-monthly rent schedule to attempt to make paying rent on time easier.
I'm considering waving the $300 back rent owed, in essence meeting them just over half way to cover the deductible. Technically, it does not appear I have an obligation to cover the deductible as there was no negligence on my part. The tenant had never raised concern about any issues with the tree having dead branches. I want to do the right, reasonable thing. I'm wondering what others here would do.
I appreciate your input!
- Real Estate Broker
- Cody, WY
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No. In case you missed that, NO!
First, you are not responsible for Acts of God. You can't control the weather or where branches fall. The only time you are responsible is when you've been negligent in the maintenance of the tree.
Second, why are you so quick to compensate the Tenant when they can't even keep up on their end of an existing agreement??? They pay late "for months" and are currently $300 behind on rent?
Here's an example of what I would say, in writing:
"Dear Tenant,
I cannot be held responsible for acts of nature, theft, mechanical breakdowns, or other actions outside of my control. Your car is your responsibility, to include your insurance deductible.
You've paid rent late for several months and are currently $300 in arrears. I suspect you'll have even more difficulty after paying your insurance deductible. It's in both our interests to admit the rental is no longer affordable. I request you agree to vacate no later than January 31st. If you do not submit written notice agreeing to termination, then I will assume you agree to abide by the lease agreement and pay your entire balance, including January rent. If you have not paid everything owed by January 10th, I will initiate an eviction."
- Nathan Gesner
Benjamin,
Nathan hit it on the head! It doesn't matter who owns the tree, you're likely in no way liable unless you've ignored their requests to trim the tree (and you didn't do anything), or failed to take care of the tree at all. If you've been prudent and acted as a typical landlord would/should with regards to the maintenance of that tree, then you shouldn't pay them anything, nor feel obligated to do so.
So many people want to go back to "who owns the tree". It really doesn't matter 99% of the time. No one can control the wind. If a tornado picks my car up and throws it into your house a block down the street, I'm not negligent. Similar situation here. Hold steady and keep moving forward. Good luck!
No, I would not pay the deductible nor is it something I would consider. I know you said your insurance wouldn't cover it but I would never ever never ever run something like this through insurance either or even ask the insurance company about.
Originally posted by @Nathan Gesner:
No. In case you missed that, NO!
First, you are not responsible for Acts of God. You can't control the weather or where branches fall. The only time you are responsible is when you've been negligent in the maintenance of the tree.
Second, why are you so quick to compensate the Tenant when they can't even keep up on their end of an existing agreement??? They pay late "for months" and are currently $300 behind on rent?
Here's an example of what I would say, in writing:
"Dear Tenant,
I cannot be held responsible for acts of nature, theft, mechanical breakdowns, or other actions outside of my control. Your car is your responsibility, to include your insurance deductible.
You've paid rent late for several months and are currently $300 in arrears. I suspect you'll have even more difficulty after paying your insurance deductible. It's in both our interests to admit the rental is no longer affordable. I request you agree to vacate no later than January 31st. If you do not submit written notice agreeing to termination, then I will assume you agree to abide by the lease agreement and pay your entire balance, including January rent. If you have not paid everything owed by January 10th, I will initiate an eviction."
Thank you for that! In regard to the maintenance of the tree, I had not done anything with the tree in the 14 or so months that I owned the property up to that point. It's a big, healthy looking tree. I'm not a tree expert but when you would look at it you would never think it was a hazard or any of the branches would come down. Considering the volume of branches that did come down, it presumably could have used some kind of trim, although the result might have been similar either way. We have plenty of normal wind, none of which had ever brought any branches down until the major wind storm that happened. An article sites that the wind speeds reached 90 MPH during this particular storm. Does the fact that I had never had any kind of maintenance done to the tree, although the lay person's eye test never called for it, put some of the responsibility on me?
Originally posted by @Bo Bond:
Benjamin,
Nathan hit it on the head! It doesn't matter who owns the tree, you're likely in no way liable unless you've ignored their requests to trim the tree (and you didn't do anything), or failed to take care of the tree at all. If you've been prudent and acted as a typical landlord would/should with regards to the maintenance of that tree, then you shouldn't pay them anything, nor feel obligated to do so.
So many people want to go back to "who owns the tree". It really doesn't matter 99% of the time. No one can control the wind. If a tornado picks my car up and throws it into your house a block down the street, I'm not negligent. Similar situation here. Hold steady and keep moving forward. Good luck!
Thanks Bo! What's your take on the above? I'm unclear what a reasonable expectation is in maintaining a tree. It seems reasonable to use an eye test to judge the need for a tree to be trimmed, however, I'm sure there could be different opinions on that.
Doesn't matter if it was 5 mph winds or 90, you are not responsible to pay anything. Now, you might want to and that is your choice but you have no legal reason to pay for it. This is why the tenant has insurance. This is 100% their responsibility. The fact that it was 90 MPH winds is in your favor yes. That is at the top end of category 1 hurricane wind speed.
Given what you have said you have no obligation to do anything but say no.
Originally posted by @Scott M.:
Doesn't matter if it was 5 mph winds or 90, you are not responsible to pay anything. Now, you might want to and that is your choice but you have no legal reason to pay for it. This is why the tenant has insurance. This is 100% their responsibility. The fact that it was 90 MPH winds is in your favor yes. That is at the top end of category 1 hurricane wind speed.
Given what you have said you have no obligation to do anything but say no.
Thank you for drilling in the point!
Nope. Not unless you knew or should have known that the tree was weakened, diseased, rotten etc.
@Benjamin Amaral it’s unfortunate the tenant’s car was damaged but these things happen. What if it was a neighbor’s tree or a tree down the block that caused damage? Would the tree owner be obligated to pay for damage? No. As long as it wasn’t due to your negligence you have no obligation to pay.
Your tenant clearly has some financial issues since they’ve been behind “for months” and are looking for ways to not be responsible for their car.
That’s what insurance is for. Deductibles are just part of the game.
@Benjamin Amaral
Why would you pay for their car repairs? Did they come to you previously and mention that the branches were dead and should be trimmed? No? Then I do not understand why you would even consider giving them a break. It sounds like you need to get rid of them as soon as the lease ends or evict if they do nit catch up on rent.
Benjamin,
I really can't speak to what might be typical / normal prudent behavior of a landlord when it comes to keeping your trees pruned and in good shape because I'm not a landlord. However, as an insurance agent that's dealt with this issue from a risk management point of view, as well as claims point of view, I would suggest these items below as being prudent, and what my clients tend to do to protect themselves in similar circumstances.
#1. A general eyeball test is prudent and expected for sure. It shouldn't be hard to tell if the tree is overgrown, has visible dead limbs, regularly drops sizable limbs/branches on the ground, etc. If you notice this, it's probably time to act. When/if you do act, be sure to update the tenant in writing (email, formal letter, etc.). Multiple points of contact is best.
#2. If the tenant (or anyone) emails you or calls you about trees and potential issues or hazards on your property, be proactive. Don't just sit and do nothing for days, weeks, or months. If you do, now you've opened the door for negligence. However, that does "not" mean you have to spend money or physically do something just because someone calls you. What you "should do" is respond in writing stating what you did (even if it was just the eyeball test). Again, multiple points of contact is best.
#3. When necessary, use your preferred vendor to trim the trees. I know some landlords that do this annually, while others do it every other year or so. I suppose this just depends on many factors (how fast your trees grow, how old they are, are you in a high wind prone area, etc.). Respond in writing with updates / actions.
#4. Lastly, if there's real concern about issues or potential hazards, call an arborist. They have their own professional liability. If you follow their professional advise and something awful happens because of it, they could be wholly or partially liable in the end. Respond in writing with updates / actions.
Good Luck!