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by Michael Johnston


the immediate right of inspection;

be performed by a professional to pre- serve the authenticity of the evidence collected and to assure that said evi- dence would be admissible at a trial. Some states have provisions in their Property Code that prevent a tenant from bringing a lawsuit for personal injuries if the tenant is not current on rent payments. Even if your state does have such a provision, it is still important to collect the evidence because statutes are always subject to being “interpreted” by courts and even declared unenforceable. The purpose of this column is to provide conceptual legal answers to questions that owners of residential rental prop- erty may have. Please understand that any opinions set forth in this column are extremely general. We strongly urge you to consult with your own attorney because real estate law varies from state to state and is always in a constant state of flux due to changes in statutory, regulatory, and case law. •

hen it comes to leasing prop- erty, sometimes it’s inevitable

that legal issues will arise in the landlord-tenant relationship. Often, being well-informed can help ensure legalities don’t get in the way of your investment. Here is a look at a com- mon landlord question and advice from an attorney’s point of view.

b. The tenant is responsible for maintenance

3. Retain a licensed plumber to inspect the hot water heater and determine the cause, if any, of a leak; 4.Work with the assigned ad- juster to document the scene through multiple photographs and forensic collection of evi- dence, such as:


My tenant is significantly past due on his rent. When I began

eviction proceedings, he claimed that he had been injured when he slipped on water that had leaked from a hot water heater. He told me that he had already hired an attorney and filed a lawsuit. What should I do?

a. Water samples from the inte- rior of the hot water heater;


Many owners have the false impression that “slip-and-fall”

b. Water samples on the floor;

cases are minor and do not deserve serious attention. Any such impression is inaccurate. I have seen residen- tial slip-and-fall cases that result in devastating and permanent disabling injuries. Here are necessary action items owners should take, listed in chronological order:

c. The clothing worn by the tenant; and

5.Install a new hot water heater and take the old one and pre- serve it as evidence. You should also consult your main- tenance records, which should show when the hot water heater was in- stalled and any maintenance service on the hot water heater, including periodic drainage of the hot water heater. The collection of forensic evidence should

Michael Johnston has 39 years’ experience as a civil litigator and has represented property owners in numerous landlord/tenant cases. Mr.

1.  Immediately notify your liabili- ty insurance carrier;

Johnston is board certified by the Texas Board of Legal Specialization in the field of Civil Litigation as well as Consumer Law, which includes landlord/ tenant litigation. Mr. Johnston regularly serves as an arbitrator in consumer and commercial cases as well as insurance-related cases. He can be reached at (800) 771-6946 or

2. Review the Lease to deter- mine whether:

a. Your Lease gives you

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