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A True "Out of Possesion" Landlord.

September 10, 2013

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In <a href=""><i>Smith v. RMS Residential Properties, LLC, Defendant</i></a>, RMS purchased a property in Queens through a foreclosure auction in 2008.  The former homeowner refused to vacate the premises or provide access to RMS or its Realtor (tasked with re-selling the property) until she moved out in late 2011/early 2012.  Plaintiff, a visitor of the former homeowner, was injured when a bathroom light fixture fell on him in August 2011.  Plaintiff sued RMS, and RMS moved for summary judgment as an “out of possession” landowner.  Plaintiff opposed the motion by invoking New York Multiple Dwelling Law §78,which requires that "[e]very multiple dwelling, including its roof or roofs, and every part thereof and the lot upon which it is situated, shall be kept in good repair.”  However, the court noted that, "an owner will not be held liable under section 78 where it has completely parted with possession and control of the building." Here, RMS had no control of the building, thus had no duty to maintain or repair the property and, therefore, could not be held liable for plaintiff’s injuries.

Most “out of possession” landowner arguments are made where a lease discharges the landlord’s duty to repair or maintain the premises.  Here, though RMS was not legally discharged of the duty via a written lease, the court found that it owed no duty to the plaintiff since it did not factually have control of the building.

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