Vacant buildings, due to improper security, maintenance or protection, are constantly the source of fires that spread to neighboring and innocent property owners. These properties create significant risks to their surroundings while making subrogation claims difficult from the outset.
There is a general common law duty imposed on property owners to avoid causing unreasonable or foreseeable harm to their neighbors. However, subrogating against vacant building owners is challenging because of a “nexus-of-negligence” required to impose liability on a non-present individual or entity. Outside of the property owner, these matters are usually left with no known targets, or at best, targets that are judgment proof. Most owners claim ignorance of the property’s condition.
Owners of vacant properties are supposed to foresee the dangers of neglecting their buildings. The largest risk is increased access to vagrants due to poor security measures. These unauthorized occupants are likely to use open flames for heating and cooking, generate excessive debris, and create a higher chance of accidental (or intentional) fires. Accelerated fire spread from improperly maintained or protected properties is always concerning. Vacant buildings lack the typical maintenance and fire suppression guards like sprinklers, alarms, fire-watches, or maintained fire-proofing construction found in occupied structures.
To combat these known risks, certain jurisdictions have enacted legislation called “vacant building ordinances.” The City of Chicago enacted ordinance §13-12-125 that creates an affirmative duty on owners of vacant properties to, among other things: (1) register them with the City; (2) secure them from unauthorized access; (3) maintain them to maximize fire protections while minimizing unauthorized access and deterioration; (4) procure a security detail or watchman; and (5) purchase liability insurance for them.
The ordinance also usually defines any vacant structure as a public nuisance if it contains a fire, electrical, plumbing or building code violation that is imminently dangerous. This ordinance, and similar ones in: New York City (§ FC 311), Boston (§16-52.4), Indianapolis (§537-31), etc., are powerful tools in pursuing subrogation actions against vacant building owners that cause property damage to neighboring structures. It is prudent to review local, county and/or state regulations to determine if there is an already imposed duty that can provide recovery theories and avenues.