Canada: Real Estate Open Houses: Buyer Beware

Last Updated: October 10 2016
Article by Laleh Hedayati and Michael J. Henry

Whether you're actively looking to buy a house or simply curious about a property listed for sale, an "Open House" sign may be the invite you were looking for to walk through a property. Aside from possibly straining your neck while doing a double-take at a questionable choice of décor, hopefully you won't experience any injuries while on your tour of the home. But what if you do?

Occupiers' Liability

Property owners should be aware and understand that if someone is injured on their property, regardless of being invited or not, they may be liable for that injury – particularly if there is a hazard or unsafe condition on the property.

However, a property owner may not be the only person who bears responsibility for and control over the condition of premises, or the activities carried thereon. There is a duty to take "reasonable care" to ensure a visitor's safety while they are on the property. Ontario's Occupiers' Liability Act includes a definition of "occupier" that is broad enough to include real estate agents who may be hosting an open house and inviting individuals onto the property.

It is important for both property owners and real estate agents to ensure that the property has the appropriate home insurance coverage (or business insurance coverage for commercial properties) to respond to a claim if one arises. Moreover, if an owner or agent has engaged the services of an independent contractor in preparation for an open house – such as a furniture staging company – they should ensure they have insurance and carefully review contracts that can shift the liability from the contractors to the owners and/or real estate agents.

Take Reasonable Care

Aside from having adequate insurance coverage, owners and agents should ensure that a property is well-lit, that walkways are clear of ice or debris, and that hazards (slippery floors, missing handrails, gaps, cracks, holes or sudden changes in elevation, etc.) are fixed or clearly marked with warnings to reduce the likelihood of an incident, which could result in injuries to patrons.

When courts are asked to decide if an occupier exercised reasonable care over a property, they may look at a number of factors, including but not limited to: was there a foreseeable hazard or danger; was the property well maintained and inspected regularly for any hazards; were potential hazards clearly marked and brought to the attention of individuals on the property; were any hazards attended to in a reasonable amount of time; and/or were the occupiers advised of hazards and did NOT take any measure to remediate the problem.

Contributory Negligence

If you are injured, while at an open house, you may be eligible to claim against an occupier for damages such as pain and suffering, medical bills, and lost income and/or other expenses.

It should be noted that as a claimant, there is an onus on you to ensure that you walk in a safe and prudent manner while on someone else's property. As such, claimants are held to be partially responsible in contributing to their own misfortune of suffering any injuries, if they are found to be negligent.

Some factors that will support an individual having contributed to his/her own injuries include whether they: failed to take reasonable care for their own safety; had difficulty traversing a part of the property, yet continued to do so; were distracted due to being on a cellphone; were running, or in a rush to get somewhere; were not watching where they were going; and/or had a previous medical condition that contributed to the injury.

What You Should Do

Ideally, a visit to an open house should be a good experience. Responsible home owners and agents should be aware of any potential hazards that individuals may encounter while there and should fix or bring such hazards to the attention of individuals on the property as they have a duty to keep them safe while there.

You should heed all hazard warnings, take caution not to rush through unfamiliar places, avoid areas if you are having difficulty accessing them, and generally pay attention to your surroundings and conduct yourself in a safe and prudent manner that would not ordinarily put you at risk.

If you are injured, be sure to document the event as soon as possible with as much detail as possible. Photographs of the scene of the incident, if possible, are helpful, as well as any witnesses and their contact details. Stay safe and happy house hunting.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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