Open House Risk Up
Risk Management Issues - Agent Disclosures - Litigation Avoidance & Risk
By Apple Home Inspections  (949)  837-7755                                    David Jones  
More risk than just having a open house.
  • Seller must have a safe home.
  • Agent must look for safety concerns.
  • Agent to warn others.
  • Lawsuits against agents by injured.
Home owners have a legal responsibility to have their home in a safe condition. Should they have an unsafe condition in
their home, they have a legal responsibility to make the unsafe condition safe. Failure to do so may lead to litigation and a
judgment against them. CA. Civil Code  1714.

Brokers now also have a potential liability when hosting an open house. Historically, agents have not been responsible for
the condition of the home and the safety of prospective buyers touring the home. They generally did not incur liability,
unless they were negligent. The concept was that they were not in possession of the home or in legal terms a “possessor.”

Court decisions are now beginning to consider an agent to be possessor, similar to that of the homeowner. Generally, the
homeowner is still held to a higher standard for the safety of a visitor or invite than the agent. What the courts are saying,
is that an agent is earning a commission on the sale or lease of the home, that the agent has some liability in protecting
the safety of a perspective buyer. That the agent, in some ways is temporarily in possession of the home. Therefore, he is
looked upon in the eyes of the law as a possessor.

Listing agents responsibility may extend beyond open houses for buyers. It may well include, open houses for agents to
preview the home.

A prudent agent holding an open house for prospective purchasers or an agents preview, should walk through the home,
as well as the exterior of the property, to discover conditions that may cause injury or harm to visitors. These conditions
should be corrected or made safe. Any unsafe conditions that are not corrected should have adequate warning signs and
all visitors should be warned of the dangers.

Once an agent has warned and pointed out that a hazard exists, then it is up to the visitor / perspective buyer, to decide if
they want to expose themselves to the potential danger or leave the home.

Hopkins v. Fox and Lazo, establishes the need for agents to walk around the property and conduct a reasonable and
diligent review for possible dangers of areas where one might be injured. Additionally, they should warn prospective
buyers and visitors of these dangers.

Facts of the case

Hopkins v. Fox and Lazo Realtors
625 A.2d 1110.

A perspective buyer, Emily Hopkins accompanied by her son and daughter-in-law was invited to an open house by an
agent. When they first arrived at the home they were not welcomed at the door by the agent who invited them. Therefore,
they were left free to walk about the house unaccompanied. When they reached the kitchen they discovered the agent,
said hello, and started a further inspection of the home.

One of the hallways of the home had a step down to another section of the home. Emily Hopkins decided to view one
section of the home while her family viewed the patio and grounds. As Mrs. Hopkins family reentered the home she
decided to join them. As she was walking down the hallway she failed to see the step down. Each level of the hallway was
covered by the same vinyl flooring with the same pattern. Mrs. Hopkins fall resulted in an injury and she sued.

The court reasoned that the property owner had a duty of reasonable care to guard against any hazardous conditions on
his property. This has been a common-law doctrine back to the 19th century. California reaffirmed this doctrine in a
landmark decision of Rowland v. Christian, which also eliminated the need for a distinction between licensees and invitees.

The court further reasoned that there were economic benefits received when a broker had a potential buyer visit a home.
It reasoned that an open house presents an agent with an opportunity to met and cultivate future clients as well. That the
potential buyer enters the property at the broker's invitation and may reasonably expect to be able to rely on and use the
services offered by the broker in connection with the examination of the premises. The court concluded that the agents’
invitation to the perspective buyer made the agent partially responsible for the safety of the buyer while visiting the
premises.

The court reasoned that it is foreseeable that a visitor to an open house could be injured by dangerous conditions while
wandering through an unfamiliar house. That the potential buyer could reasonably expect that the broker was familiar with
the premises and that they could rely on the brokers’ familiarity of the house to warn and protect them from any
unforeseen dangers.

Conclusion: The courts are finding that an agent has a duty for the safety of perspective buyers who come to an open
house.
Who is liable for
visitors injury?
The information on this website is believed to be accurate, is for informational
purposes only, and is not intended and should not be construed as legal advice. All
information, ideas and suggestions should be verified to be correct and reviewed
with an attorney and an appropriately qualified broker, as well as an appropriately
qualified professional, who has knowledge of the subject matter.
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