Selling a Property With Unsafe Conditions

If prospects or their broker are injured while viewing a listed property (either
inside an improvement or on the land) because of an unsafe condition, both
the owner of the property and the broker can be sued for premises liability
damages. Most premises liability injury claims come down to proving that
the property owner failed to take reasonable steps to fix a known (or
reasonable knowable) unsafe condition or to otherwise prevent an injury on
the property. That is, the owner was negligent in its duty to make sure
invitees are safe from known dangers on the property. The law defines
"reasonable" as what a person of ordinary intelligence and judgment would
do under the same circumstances. If a premises liability case goes to trial,
it is left up to a jury to decide what is reasonable under the circumstances.  
​
Damages can include a wide range of losses, including medical bills, time
missed at work, physical and mental pain and suffering resulting from the
injuries, and more.

The Injured Party Cannot be Careless or Negligent
In Georgia, a visitor to a property cannot be careless or negligent either. If
an injured person could have exercised ordinary care to avoid an injury on
a property, they will not be able to recover damages.

This brings us to the real world of listing property that may be dilapidated or
may have unsafe conditions.

Preventing Injury and Liability
The best-case scenario prior to listing a property with unsafe or dilapidated
conditions would be to have a professional inspection of the property and to
correct any revealed conditions.

If the owner is unwilling or unable to make such repairs, the inspection
report can be given to buyers before their tour of the property as a form of
disclosure. (Even if the repairs are made, the report should be given out.)
In the real world, owners are often unwilling to have a property inspection.
​
If a condition is known, reasonably knowable or even suspected, warning of
it will go far in protecting the owner and broker from liability. Remember, a
visitor to a property cannot be careless or negligent either. If visitors ignore
clear posted warnings, they are far less likely to recover damages.

If you can provide evidence that you took reasonable efforts to prevent
harm to others, you are much less likely to be found liable. Consider the
following preventive actions:

•  Include a warning of unsafe conditions in the comments section in

multiple listing services.

•  Post a warning on the property at access points to the unsafe

condition.

•  Include “Enter at your own risk.”
•  Tape off the area of an unsafe condition to prevent access along with

a posted warning.

•  Install double keyed locks that prevent access.
•  If appropriate, require executed Hold Harmless Agreements before

allowing visitors to the property.

•  Post a No Trespassing sign on the property. (Realtors, prospects with

realtors and others with permission are not trespassers.)

•  Take pictures with date and time of posted warnings and

taped/locked areas

•  Replace any posted warnings or tapes as needed and retake

pictures.

Seth Weissman offers several Special Stipulations in the Red Book to use
when selling a property with unknown or unsafe conditions. Consider the
following.

Not Familiar with the Condition of the Property

SS: Buyer acknowledges that Seller is not familiar with the condition of the
Property. The Property is therefore being sold in “as is” condition. The
Property contains numerous conditions that are in need of repair or
replacement. While Seller is unaware of latent or hidden defects in the
Property or safety concerns, Seller has not examined the Property in
search of latent or hidden defects. Buyer agrees to have the Property
inspected by a professional home inspector, engineer, and/or other
construction experts to ensure that Buyer is familiar with the condition of
the Property. Buyer covenants not to sue Seller for any matter arising out of
or relating to the condition of the Property.

When the Seller Knows or Suspects the Property to Be in a Dilapidated or
Dangerous Condition

SS: The Seller is not providing the Buyer with a Seller’s Property
Disclosure Statement Exhibit because the Seller is unfamiliar with the
condition of the Property. The Property and improvements upon the
Property may contain defects and dangerous conditions. Consequently, the
Buyer and Buyer’s Agent(s) are encouraged to use the utmost of caution
while in and around the Property to avoid injury. The Buyer is strongly
encouraged to have the Property carefully inspected by a professional
inspector because of the Seller’s lack of familiarity with the condition of the
Property.