Notes from the Attorneys of the Massachusetts Association of REALTORS Legal Hotline

Q. If I hold an open house at a listing and a potential buyer is injured (falls down stairs, is bitten by the owner’s dog etc) can my firm be liable? What about situations where a seller claims that something is stolen from the home during the open house?

A. The answer to both questions is “maybe”. In the law, liability is based upon breaching a duty owed to someone and that breach causing damages or injury. In the two examples you give, it is possible that a firm could find itself involved in a lawsuit if they failed to meet their duties to either the prospective buyers or their seller client.

When you hold an open house, your firm is inviting the public into a private home. So, for example, if a customer walks into an open house and is bitten by the owner’s dog who had almost bitten you the week before when you took the listing, your firm’s decision to hold the open house in light of your knowledge of the dog’s dangerous propensities could create a problem-especially if you did not warn the customer and the seller took no steps to secure the animal in a safe location.

Situations in which items are alleged to have been stolen can be difficult to resolve. If you were negligent in the way you monitored people while they were in the home you could be liable for items that went missing. It is never a bad idea to give the seller a clear set of instructions on what they should do with valuables and medications before an open is held. For more information on keeping yourself safe at an open house visit MAR’s website.

Q: I have an open house scheduled for this weekend at one of my listings and the owners will be out of town on vacation. The forecast is for a large amount of snow and I have agreed to take care of the house while they are gone. Am I responsible if someone slips and falls while at the house? Should I shovel the walk before the open house?

A: Massachusetts case law has virtually eliminated claims based upon injuries sustained from falls on snow and ice that was considered a natural accumulation. In 1992, the Supreme Judicial Court held that “the law does not regard the natural accumulation of snow and ice as an actionable property defect, if it regards such weather conditions as a defect at all.” Due to this limitation, the plaintiff must show that the snow or ice created an unnatural accumulation in order for the case to be successful. It is possible that once you shovel the snow it could be considered unnatural accumulation if it is more dangerous than when the snow fell. If you do shovel make sure the passage way are clear and not slippery.

It is unclear if you would be responsible if someone slips and falls as you may have inadvertently become a property manager when you agreed to “take care of the house” in the owner’s absence. If you are not the property manager then these claims would normally be covered by the owner’s homeowner’s insurance but that may not cover you if you are the legally responsible person for the property at the time of the accident.

Q: Who is responsible for removing snow and ice from a rental property? Can I require the tenant to remove snow and ice from the property in the lease?

A: The short answer is the landlord is responsible. Many landlords attempt to pass this responsibility onto their tenants by writing a provision into their leases. This practice, however, may not protect the landlord from liability. The Massachusetts sanitary code provides that the “owner shall maintain all means of egress in a safe, operable condition” and that all “exterior stairways, fire escapes, and egress balcony, shall be kept free of snow and ice.” Massachusetts law also provides that any provision in a rental agreement which waives the protections given by the sanitary code is void as against public policy. Taken together it would appear that the landlord cannot assign this responsibility in a lease, however the law is unclear on the matter.

The sanitary code does not cover driveways or sidewalks; therefore, logic would suggest these could be assigned into a lease. If a landlord decides to form a side agreement with a tenant to compensate them for snow and ice removal they should carry workers’ compensation insurance as these tenants are now employees of the landlord.