Landlord and Real Estate Agents successfully defend a negligence claim for latent defects

04 August 2021

A Victorian Court has found that occupiers and contracted real estate agents do not have an obligation to arrange inspection of their premises by experts unless they are alerted to defects.

In Issue

  • The application of Part X of the Wrongs Act 1958 (Vic) in relation to claims for damages in negligence and the duty owed by occupiers and landlords, as well as whether occupiers of a property can delegate their duty of care to real estate agents.

The background

The plaintiff was the owner of a residential property at Noble Park. The first and second defendants were the owners of a similar adjoining property, an investment property managed by one or more of the third, fourth and/or fifth defendants (the “real estate agents”). The Management Agreement contained a term that the agents would arrange maintenance/repairs/renovations in respect of the property.

On 13 October 2016, the plaintiff’s husband noticed that a brick wall between the plaintiff’s unit and the first and second defendants’ unit was leaning over, and not vertical. As the plaintiff approached the middle of the wall to inspect it, it collapsed onto her left foot, causing injury.

The plaintiff brought proceedings against the defendants in negligence.

The decision at trial

His Honour found that in the present instance the defect was latent, the wall having first been observed to be leaning on the day of the incident. His Honour Judge O’Neill determined that Part X of the Wrongs Act 1958 (Vic) did not require the landlord or real estate agent, absent being put on notice of a defect, to arrange expert inspection of the boundary fence.

Accordingly, His Honour entered judgment for the defendant.

Implications for you

The decision highlights that both landlords and managing real estate agents are only obligated to seek professional inspections of property if they are alerted to defects.

Correa v He & Ors [2021] VCC 679

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