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REIQ Journal : October 2008
Property Management 45 Preventing negligence claims By Peter Lynch, Aon Risk Services It’s 9 o’clock on a Monday morning and you receive a phone call from the tenant in one of the townhouses under your management. A visitor to the property has tripped on a raised tile in the kitchen and broken his ankle. He is threatening to sue you and the landlord for the medical bills as well as physical suffering and emotional distress. WHERE YOU AND the landlord stand from a legal perspective depends on a range of factors. In general, the claimant needs to prove that his injury was the result of yours and / or the landlord’s negligence in maintaining the property. What is negligence? In the majority of cases, negligence is proven when the following occurs. The accident happened on part of the property the landlord is responsible for maintaining. In the example above the visitor broke his ankle in the kitchen, which is obviously considered part of the property. If the accident had occurred in a common area, such as the front foyer, it would be the strata manager’s responsibility. The landlord failed to fix the problem or at least warn the tenant of the potential hazard while making arrangements to have it rectified. The claimant is genuinely hurt and the injury is the direct result of the landlord’s failure to maintain the property. Preventing negligence claims Naturally, these claims can be avoided by working with the landlord to ensure the property is well-maintained at all times. However, there are instances where negligence occurs despite your best efforts. In such cases, you can dispute your liability by demonstrating that you have fulfilled your role as the property manager. This may include clear and precise records of inspections, correspondence to the landlord on maintenance requests, and any other actions you took to ensure the property is maintained. Put the following best practice procedures in place to ensure your professionalism is documented. 1. Use a written checklist to inspect the premises and fix any problems before new tenants move in. 2. When tenants move in, give them a checklist for reporting potential safety hazards or maintenance problems that might have been overlooked. 3. Ask the tenants to use the checklist every six months and inspect the property yourself once a year. 4. Advise tenants to report any safety or security problems and keep a log of these as well as actions you took in response to them. 5. Make sure that urgent repairs are done within 24 hours where possible and keep tenants informed as to when and how the repairs will be made. For more information on landlord or professional indemnity insurance, please seek advice from your broker. Disclaimer: The information in this article is of a general nature only and individuals should consider their own circumstances before proceeding in reliance on such information. Whilst care has been taken in preparing this article, and the information contained in it has been obtained from sources that tAon believe to be reliable, Aon does not warrant, represent or guarantee the accuracy, completeness or fitness for purpose of that information. Aon accordingly accepts no liability for any loss resulting from the use of the information in this article. REIQ Journal October 2008