CONTRIBUTORSElite AgentNSW

Rita Yousef: When is the landlord liable?

If a visitor is injured at a rental property is it the landlord, tenant or property manager that’s liable? Personal injury specialist Rita Yousef examines the most common risks and explains what a landlord’s duty of care is.

Landlords of residential premises in NSW owe a duty of care to all visitors to their property. 

The duty is to take reasonable care to avoid foreseeable risk of injury.

This applies even if the landlord is not an occupier of the property but lives elsewhere and the property is vacant, or there is a tenant.

This duty also exists even if a real estate agent manages the property on behalf of the landlord.

The law in NSW holds landlords accountable even if the tenant and agent are also to blame for the injury. 

Landlords are required to exercise ‘reasonable care’.

The meaning of ‘reasonable care’ depends on the circumstances of each situation.

Common risks are associated with poor maintenance and a failure to take proper steps to maintain a property, or to avoid and address hidden traps as well as poor lighting.

For example, a landlord who fails to be directly and consistently involved in addressing maintenance problems within their property will be liable for an injury arising from the issues, even if they gave instructions to the real estate agent managing their property.

The law says that the landlord is required to be intimately involved and to follow up until they satisfy themselves that any maintenance problem leading to a foreseeable risk of injury is addressed.

It is not enough for a landlord to say they were relying on a tenant and/or agent to report on and take steps to address risks of injury. 

If a visitor is injured on the landlord’s property and they can prove their injury and subsequent losses were caused by the landlord’s failure to take reasonable care to avoid the foreseeable risk of their injury, the landlord (or their public liability insurer if such insurance exists) may find themselves liable to pay significant amounts of compensation. 

Injured persons may be entitled to compensation for such damage and loss as their pain and suffering, loss of income and earning capacity, their care and assistance needs arising from their injuries, as well as their treatment expenses.

This is both for the past and into the future, usually based on medical reports. 

Such cases usually require complex and expensive expert reports about the risk that eventuated and what the landlord should have done to avoid it.

Experts such as builders and construction engineers are often used in these scenarios. 

One situation that may leave a landlord open to significant risk, due to the volume of visitors entering their property, is the process of leasing out and/or selling their property.

They would naturally be required to allow multiple visits from the real estate agent involved as well as prospective tenants and/or buyers.

The landlord owes a duty of care to all of these visitors.

Some inspections may result in upwards of 50 or 100 visitors to the property in a short space of time, often creating cramped conditions and increasing the risk of, for example, trips, slips and falls on hidden traps or due to poor lighting.

It is crucial that landlords are aware of their obligations.

It is advisable for landlords to undertake regular and proper inspections and risk assessments of their property to ensure that visitors are not exposed to foreseeable risks of injury. 

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Rita Yousef

Rita Yousef is a senior associate and accredited specialist in personal injury law at MTM Legal. For more information visit mtmlegal.com.au