Can a tenant sue an agent or landlord for negligence? In a word – yes. Read on to find out more…
Negligence. It’s a word that doesn’t have a nice ring to it. It’s kind of ominous – and for good reason. If a tenant is using the words ‘negligence’ or ‘negligent’ when referring to their landlord or property manager, they aren’t paying a compliment. There’s actually a good chance that the person to whom they are referring will be the one paying – not compliments but potentially compensation.
Let’s dig deeper…
So just what is negligence?
Put simply, negligence is when someone owes you a duty of care but has failed to act according to a reasonable standard of care and this has caused you injury. The negligent behaviour can be a result of either an act or a failure to act.
Yes, it sounds like legal-speak but it’s also insurance-speak. Why? Because negligence is tied to liability and legal liability is something that you can often protect against with insurance.
So what’s legal liability then?
Liability is basically a person’s obligation or responsibility, under law, to compensate another person if their negligence led to that other person suffering a loss, such as an injury or damage to their property.
When it comes to rental properties, both landlords and agents have a duty of care to protect others from loss. Duty of care means ‘an obligation to take reasonable care to avoid foreseeable harm to another person on their property’.
Landlords owe a duty of care to their tenants and to anyone else who is on their property, such as guests of the tenant, tradies or even the grocery delivery person. Where agents are concerned, they have a duty of care to their landlord clients in addition to tenants and visitors of the property. Heads up! Tenants also have a duty of care to anyone present on the property. It’s called occupiers’ liability and tenants should take out insurance to protect themselves.
What are the landlord’s/agent’s obligations?
The duty of care owed by the landlord to tenants and anyone invited on to the property relates to ensuring that the property is safe.
The landlord and/or agent may be held legally liable if an injury or death occurs, or a person’s property is damaged or lost, as a result of the landlord’s failure to ensure the rental premises are safe. An agent may also be held liable if it is found that they were negligent in their duties too, for example by not notifying the landlord of a safety issue at the premises or failing to make it safe.
Landlords and agents have a responsibility to ensure that the rental meets applicable state health and safety laws. This means landlords must take reasonable care to avoid foreseeable risk of harm to their tenants and others at the property.
Each state and territory has safety requirements that must be met. While the legislation in each jurisdiction may differ (always refer to your state or territory law for specifics), in general obligations include ensuring:
- electrical safety
- working smoke alarms
- gas safety
- the structural integrity of the building
- windows and balcony safety
- working locks and security devices
- pests and vermin are eliminated (if present at the start of the tenancy)
- health-threatening issues such as rising damp or mould are promptly rectified (if the landlord is responsible for its presence – see our article)
- swimming pool and spa safety.
Further state-specific requirements that must be met relate to building standards, fire safety standards, anchoring furniture, blind and curtain safety and maintaining appliances.
In addition, landlords and agents have an obligation to arrange for urgent repairs necessary to avoid exposing a person to risk of injury.
Tenants also have some responsibilities. They must ensure the rental property remains a safe environment by:
- not creating hazards by their actions
- alerting the landlord or agent (usually in writing) to any safety issues around the home as soon as possible.
So what makes a landlord or agent negligent?
When it comes to negligence, the landlord’s duty of care includes responsibility for:
- defects that existed at the time the tenancy commenced or was renewed, and
- defects of which the landlord knows or ought to have known that arose during the term of the tenancy.
A landlord or their agent can be found liable for tenant injury at the rental property if the injury is the result of a dangerous condition or state of disrepair at the premises:
- which had not been identified because the landlord or agent failed to conduct regular inspections, or
- which they were warned of but failed to properly rectify within a reasonable time.
It should be noted that the landlord will not generally be held liable for injuries that are caused by a defect, hazard or condition that they did not know about and could not have reasonably known about.
What should landlords do?
What happens if the landlord is negligent?
If a landlord or agent breaches their duty of care, the person who suffered a loss has avenues for recourse (legal remedies to recoup losses). Depending on the applicable circumstances and legislation, the tenant may be able to withhold rent, pay for repairs and deduct the cost from their rent or terminate the lease. Or they may haul the landlord or agent before a tribunal or court. They may sue the landlord or agent for negligence.
If the actions or inaction of a landlord and/or agent results in a tenant or another person on the premises being injured or having their property damaged, the landlord and/or agent may be required to compensate the person who suffered a loss.
Claims for legal liability (also known as public liability or liability to others) can range from a few hundred dollars to millions. The compensation will generally reflect the severity of the injury suffered.
Landlords may also have grounds to pursue their agent for negligence if they suffer a loss as a result of their agent’s action or inaction.
If found negligent, the landlord and/or agent is likely to be ordered to pay compensation. They may also be required to pay the claimant’s legal costs in addition to their own.
How can landlords and agents protect themselves?
Negligence can take many forms and can sometimes lead to costly legal disputes between landlords, agents and tenants. That’s why landlords and agents need to understand their legal obligations and potential risks.
It’s also why it’s important to protect yourself with the right insurance policy.
For property owners, a landlord insurance policy should include cover for legal liability.
Legal liability insurance provides the policyholder with protection against claims resulting from injuries and damage to people and/or property. The policies cover both legal costs and any payouts for which the policyholder would be responsible if found legally liable.
At EBM RentCover, our landlord insurance policies offer legal liability cover ranging from $20 million (ShortTerm) to $30 million (Platinum, Ultra and Householders).
For agents, in addition to any agency public liability cover, ensuring that you have adequate professional indemnity (PI) insurance is a wise move (our colleagues at EBM Insurance & Risk can assist agents with their insurance needs). PI is designed to protect agents against legal costs and any claims for damages from third parties which could arise from an act, omission or breach of professional duty in the course of their business.
While the best way to avoid a legal battle is to understand and uphold your duty of care, it’s also imperative to protect yourself with insurance.
*While we have taken care to ensure the information above is true and correct at the time of publication, changes in circumstances and legislation after the displayed date may impact the accuracy of this article. If you need us we are here, contact 1800 661 662 if you have any questions.
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