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.