Common, Dual, or Divided Control

Generally, tenants in common of real property are jointly and severally liable for injuries arising from dangerous condition of premises[i].  However, where only one cotenant commits acts of waste or other harm that causes the injury, then s/he alone will be made liable if such injury is attributable to the independent act of such single cotenant.

Tenants in common of real property who delegate control and management of the property to a separate legal entity are also jointly and severally liable to third parties[ii].  Even in cases where the actual management of the property is vested by agreement in one cotenant, tenants in common are made liable to third parties.  Reason being that the cotenants owe a duty to exercise ordinary care in maintaining their property in such a manner that avoids injury to third persons[iii].

In situations where different persons occupy and control different parts of a single piece of land or a building, each occupant is responsible for the defects on the portion of the land that s/he occupies and controls.  While in cases where an owner of a property rents out his/her premises to different persons by retaining his/her control upon him/her, the liability for injury to persons who are rightfully on the premises will generally fall upon the owner rather than the tenant.  The liability of such owner is determined on the basis of his/her character as owner and occupant, instead of his/her character as a lessor[iv].

Co-owners who are actually in control of premises will be held liable for injuries to third persons.  But, sometimes the liability for defective premises will not fall upon both owners.  For example, where one owner while not acting as an agent for the other, creates a dangerous condition by his/her negligence, which causes an injury to a visitor who is unaware of it, the active tortfeasor alone will be held liable.  Here negligence will not be imputed to the co-owner.

In order to impose liability on the basis of co-ownership, technical possession will not be sufficient because under technical possession there will not be any actual control of the premises.  Therefore, when one co-owner of land abandons his/her possession and control of the premises to other co-owners, the liability for injury to third parties will be imposed only upon those who have actual control over the premises[v].

In case of injuries resulting to third persons from premises that are subject to the control of two neighboring owners, the liability would fall upon both owners.  Likewise, owners or occupants of adjoining premises who permit the existence of a dangerous condition or defect in an area that is under the control of both the owners will have a divisible and concurrent liability to the injured.

In addition, an owner or occupant of premises having the right of way in common with the owner or occupant of adjacent premises will be held jointly and severally liable with the owner or occupant of the adjoining premises for injury caused to third persons who use such way at the express or implied invitation of either owner or occupant[vi].  This is based upon the principle that both the owner of an easement and the owner of the servient estate will be liable for dangerous conditions upon the land.  The liability of an easement owner is based on his/her failure to keep the easement in repair.  And the liability of dominant tenant is based on his/her failure to use the way in a manner that is non-injurious to the servient estate[vii].

[i] Rose v. Saunders, 69 F.2d 339, 339-340 (9th Cir. Cal. 1934).

[ii] Ruoff v. Harbor Creek Community Assn., 10 Cal. App. 4th 1624 (Cal. App. 4th Dist. 1992).

[iii] Lansky v. Goldstein, 141 Ga. App. 345 (Ga. Ct. App. 1977).

[iv] Wool v. Larner, 112 Vt. 431 (Vt. 1942).

[v] Koutras v. Lazarus, 122 Ga. App. 870 (Ga. Ct. App. 1970).

[vi] Staples v. Bernabucci, 119 Conn. 443 (Conn. 1935).

[vii] Levy v. Kimball, 50 Haw. 497 (Haw. 1968).


Inside Common, Dual, or Divided Control