Currently dominating the news and the internet is the story of a homeowner who rented a large, beautiful house with five bedrooms, four bathrooms, a three-car garage and a spacious basement in Colorado Springs. The home had been rented to one tenant for many years without incident; the tenant died, and upon her death the daughter moved in. This is when things took a turn for the worse. The daughter quit paying rent, put a $38,000 new roof on the dwelling but refused to pay the contractor who then put a lien on the property.

The property owner evicted the tenant around Halloween 2019. A property manager allowed the tenant back into the premises within two weeks of her departure. In April 2020, when the property owner began working with a realtor to list the property, the damage caused by the tenant was discovered. The tenant spray painted the walls with graffiti, left feces on the floor, two dead cats locked in a bathroom, and other damage. The homeowner has tried for a year to get her insurance carrier to pay for the damages without success, and has filed a complaint with the insurance department.

While we don't know the carrier, the policy language or the exact details of the situation, we can look at the standard homeowners policy and explain coverage. We're looking at the ISO HO 00 03 05 11 Homeowners 3 – Special Form, a popular form in use for insuring dwellings.

Coverage for the dwelling is open perils, which means that what is not excluded is covered. The policy contains the following exclusion:

"Vandalism and malicious mischief, and any ensuing loss caused by any intentional and wrongful act committed in the course of the vandalism or malicious mischief, if the dwelling has been vacant for more than 60 consecutive days immediately before the loss."

Coverage is excluded if the property was vacant for sixty days before the date of the loss; this is critically important to the determination of coverage. We know the tenant was evicted in October of 2019, and we know the damage was discovered in April of 2020, but was the property vacant before the damage occurred? That is what needs to be determined. It's not when the loss was discovered that is important, it's when the loss occurred. If the property was vacant only for two weeks before the tenant was allowed back into the property when the tenant caused the damage, then there should be coverage, even if the damage wasn't discovered until April. The catch is determining exactly when the damage occurred. The presence of various biological materials in decomposed states should help make that determination.

Another issue that we commonly run across is what exactly is vacant; is a furnished property with no one living in it vacant, or is that property simply unoccupied? According to Merriam Webster Online, vacant is "when something is without content or occupant." Note the fact that the property must be without content. A dwelling with furniture but no occupant is not considered vacant; it is unoccupied.

From what we can gather in this particular situation the property appears to have been vacant at the time of loss, although we cannot be sure. Not knowing the carrier or the details of this particular situation we cannot come to a conclusion for coverage. What we can say is that if the property had been vacant only for two weeks before the damage occurred, regardless as to when the damage was discovered, there should be coverage. Had the property been vacant for 60 days before the damage occurred, there would be no coverage. Determining when exactly the damage occurred is needed in order to determine coverage.