June 2014 Real Estate Excellence Member Update

Contents of the Real Estate Excellence June Member Update 2014 Emailed to members the first week of June and uploaded online at www.realestateexcellence.com.au

Member information update   Member online for Platinum PME, Platinum and PME members   Box for Gold, Bronze and Individual members   A reminder of the importance of not breaching the Do Not  Call Register Laws   Landlord charged over fatal gas explosion   Real Estate advertisements – a focus on price, location and title   National licensing rescheduled for 2015 Cyber criminals steal $50,000 from Broome real estate agency trust accounts Mackay investors win as Supreme Court judge refuses extra council rates for rental owners Property Manager sues landlord for injury at rental property Upcoming training events PME system users update

Licensee/Administration Best Practice   The Property Occupations Act – summary for licensees   Property Management Best Practice   QCAT Form 8 -  counter application   Sales Best Practice Buyers, insurance and the signing of contract Landlord newsletter topic letter (attached to the Member update each month – not included in individual membership package)  - Landlord obligations generally   QCAT case study of the month- case for review and staff training attached to the member update

Test your doormat: the reasonable landlord and harm to others

In brief - High standard placed on a "reasonable person" to foresee risks

In the case Dillon v Hair [2014] NSWCA 80, the NSW Court of Appeal recently affirmed the decision of a NSW District Court judge in finding a landlord liable to their property agent for placing an outdoor mat inside the front door of a recently vacated house, causing the agent to fall and sustain injury.

Tenant gives notice to vacate premises and landlord prunes trees at premises

Jann and Harry Dillon owned a property at Katoomba in New South Wales. They retained Margaret Hair of Century 21 as their agent to manage the tenancy of the property.

In April 2010, the tenant at the time gave notice that she wished to vacate the premises. The tenant told Ms Hair that she would vacate possession on 21 May 2010 and had booked removalists for 14 May 2010. In order for the removalists to gain access to the property, the tenant asked Ms Hair to arrange pruning of some trees. Ms Hair conveyed this request to Mr and Mrs Dillon, with Mr Dillon attending to the pruning himself.

Landlord places mat on polished floorboards inside doorway of premises

The tenant gave evidence that after 14 May 2010, she returned to the premises for a "big clean up" so that the premises were in a suitable condition for the final inspection. When she entered the front door, she saw that a mat had been placed on the inside of the doorway.

The tenant assumed, and it was accepted by the primary judge, Elkaim J, that Mr Dillon placed the mat at the door, on the polished floorboards, to avoid tracking dirt into the clean premises.

Real estate agent suffers fall when mat slides out from underneath her

When the tenant returned to the premises on 21 May 2010 for the final inspection with Ms Hair, she noticed that the mat was still in place by the front door. After Ms Hair and the tenant had walked through the premises, the tenant stepped on the mat to leave, without incident.

Ms Hair gave evidence that she followed the tenant and stepped on the mat, when it slid from underneath her, causing her to fall heavily onto her left knee.

Real estate agent commences proceedings against landlords and former tenant

Ms Hair commenced proceedings against the owners, Mr and Mrs Dillon, as well as the former tenant, alleging that both parties were negligent in:

 

• Placing the mat on polished floor boards near the entrance in circumstances where the mat was liable to slip
• Failing to ensure that the mat had a non-slip backing
• Failing to warn Ms Hair that the mat was slippery and dangerous on polished floorboards

Foreseeable risk under the Civil Liability Act

Ms Hair relied on section 5B of the Civil Liability Act 2002, arguing that a person will be found to be negligent in failing to take precautions against a risk of harm where:

 

• the risk was foreseeable
• the risk was not insignificant
• in the circumstances, a reasonable person in the person's position would have taken those precautions

Precautions against a risk of harm

In determining whether a reasonable person would have taken precautions against a risk of harm, the Act specifies that the court must consider, amongst other relevant things:

 

• the probability that the harm would occur if care were not taken
• the likely seriousness of the harm
• the burden of taking precautions to avoid the risk of harm
• the social utility of the activity that creates the risk of harm

 Risk of unsecured mat slipping found to be foreseeable

Judge Elkaim of the District Court of NSW found in favour of Ms Hair as against Mr and Mrs Dillon but not as against the tenant. Judge Elkaim was satisfied on the evidence that the risk of an unsecured mat slipping while on polished floorboards presented a foreseeable risk that Mr and Mrs Dillon should have appreciated and sought to avoid the risk, by either not placing the mat on polished floorboards, leaving it outside or placing non-slip material underneath it.

Landlords appeal to NSW Court of Appeal

Mr and Mrs Dillon appealed to the NSW Court of Appeal, arguing that an occupier is not required to make premises perfectly safe, but safe to the standard of a reasonable occupier.

 

They also sought to argue that the mere fact of slipping was not sufficient to establish that a surface was slippery - rather, Ms Hair was required to show that the surface was unreasonably slippery.

In considering whether the primary judge erred in his decision, the Court of Appeal (Macfarlan JA, Emmett JA and Tobias AJA) was asked to consider, notwithstanding that the risk of harm was foreseeable and the risk not insignificant, whether in the circumstances a reasonable person in the position of the owners would have taken any precautions.

Court of Appeal upholds District Court decision

The Court of Appeal held that it was open to the primary judge to find that a reasonable person in the position of Mr Dillon, having "the knowledge of the condition of the underside of the mat" would have taken necessary precautions before placing the mat on polished floorboards.

The suggested steps to avoid such an incident included, obviously, not placing the mat in such a position where it could slide and secondly, affixing an anti-slip product to the bottom of the mat.

A "reasonable person" must be able to foresee risks and take appropriate precautions

The decision, whilst based on its unique factual scenario and the evidence of Mr Dillon in which he unequivocally conceded that the "rubbery" bottom side of the mat had become hard over the years due to its exposure to the weather, places a relatively high standard on the "reasonable person" to foresee risks and take appropriate precautions.

Although the circumstances of this case involved the relationship of a landlord and agent and were specific to the facts, it could equally apply to a guest at one's own home, given the essential element of occupation potentially exposing public liability insurers to a raft of claims.

Source www.lexology.com Article by Debbie Kaminskas CBP Lawyers

Landlord charged over fatal gas explosion that killed a tenant

A Northland home owner charged after a young woman died in a gas explosion has pleaded guilty to charges relating to the woman's death.


Peter John McLeod, 73, appeared in Whangarei District court today and admitted charges of undertaking an unauthorised gas fitting, failing to take all practicable steps to ensure that gas appliances were safe and completing gas work where not authorised to do so.


Energy Safety, which is part of WorkSafe NZ, laid the charges following the death of Lesley Anita Wehi-Jack, 19, who died in Middlemore Hospital on February 12 last year.


Ms Wehi-Jack was critically injured, suffering burns to 70 per cent of her body, when she entered the Ruakaka house she was renting in Tamure Dr and a gas appliance exploded.
She had been in the home little over a week at the time. The force of the explosion rocked neighbouring homes.

    

A coroner's inquest into Ms Wehi-Jack's death had been due to get underway today, but has been postponed. McLeod will be sentenced next month.


Ms Wehi-Jack had just arrived home from work about 8.30pm and opened the door when the explosion ripped through her house. Badly burned, she managed to get outside the house where she was helped by neighbours who doused her with a garden hose. She was rushed to Northland Base Hospital in a serious condition but died surrounded by family less than 24 hours later.


Nearby resident Jill Russell, 79, said she heard "a huge bang from about a mile away".
She ran outside and saw flames shooting through the roof.


Mrs Russell saw Ms Wehi-Jack outside the house with burns to her face and her clothes torn, and went to her aid.


"It was terrible," Mrs Russell said.


At the time, specialist fire investigator Craig Bain said the explosion resulted from a faulty gas appliance in the kitchen area and called in an energy-safety inspector from Wellington and a gas-fire investigation specialist from Auckland to help examine the scene.

- NORTHERN ADVOCATE

source http://www.nzherald.co.nz May 8th 2014