After, a brief break from my blog (while I was writing an article on common area expense overcharges and audit/accounting rights), I am back.
When I was writing that article, I discovered an interesting issue concerning whether the landlord tenant relationship can create a fiduciary duty. My research indicates that some jurisdictions recognize a fiduciary duty within the landlord-tenant relationship. This fiduciary duty can be created by the prepayment of common area expense charges before the actual expense is incurred or paid. Essentially, because the landlord has exclusive control over the tenant’s prepaid expenses some states recognize the the creation of a fiduciary duty by virtue of this prepayment. In other words, the “trust” relationship is established by the fact that the landlord is holding the tenant’s money for the tenant’s use (payment of common area expenses).
This fiduciary duty may not exist in all jurisdictions and should be researched before asserting such a claim.
Hello -
I am curious what specific cases you located that stand for the proposition that a fiduciary duty can be created by the prepayment of a common area expense. I’ve had a very similar issue come up in a case, and have not located any helpful authority. The cases you reference sound like they would be helpful. Can you share some of the citations.
Many thanks in advance.
Kelly Pierce
Same question need legal authority.
Thanks
I published an article on this issue. Please view the news section of my website to view the ABA article. It contains some good case citations
How can I determine if the fiduciary duty & relationship is applicable in Toronto, Ontario, Canada?
You will have to consult a Canadian attorney for the applicable Canadian law.