Open House Liability, A Seller’s White Elephant Gift to their Realtor

Ask any experienced and successful realtor if an open house is an essential tool for an agent to move real estate and the answer will be a resounding yes! However, we have received a few inquiries if an agent could be liable to a potential homebuyer at an open house. And the answer is, unfortunately, a lawyer favorite “maybe.” Therefore, we wish to provide a few tips for your upcoming holiday season showings to avoid simple, but costly, accidents!

Best practices requires a seller and the realtor/broker to enter into a listing agreement. Almost always these agreements have a “hold harmless” provision that states a realtor and broker will not be liable for personal injury, property damage or thefts. Other agreements may specifically state that there is an exception for the realtor’s and the broker’s own negligence. It is always best to review your agreements to determine the parties’ rights and duties to each other, and to ensure that you have covered all the bases. This is because an injured open house invitee is not constrained to only hold a homeowner liable. An injured invitee likely will include any person that may be liable, and includes a showing realtor/broker in a demand or lawsuit if the realtor knew or should have known of a dangerous condition on the property and did not advise the invitee.

To help you avoid having to have any discussion with a seller concerning liability owed to an injured third party, it is always best to advise open house invitees of any conditions on the premises. This means the disclosure of potential dangerous hazards. For example, a realtor should always advise if the floor is slippery in the garage or that the invitee and any children should stay away and not use the second floor dumbwaiter or elevator. This is because if an invitee falls on a slippery floor or a child injures themselves on the elevator, and the realtor had knowledge or should have had knowledge that an injury could have occurred, the realtor could be potentially liable to the injured party. This same liability may be assigned to a residential pool. Additionally, always verify and instruct the seller to keep a pool safety feature in place during the home showings in the event an invitee brings young children on the premises. Note this pool safety feature is required by Florida law and should prevent pool access from the yard or residence, in addition that the barrier be four feet high.

Finally, some sellers may leave an animal on the premises during a home showing. It is always best to instruct a seller to remove any animal from the premises during an open house. Keeping an animal in an inaccessible part of the home or backyard will not relieve a realtor or homeowner from liability if the animal gets loose. Also, an owner of a dog is dog statutory liable to any person for injuries related to that dog’s bite. Florida further defines an “owner” as any person, firm, corporation, or organization possessing, harboring, keeping, or having control or custody of an animal or, if the animal is owned by a person under the age of 18, that person’s parent or guardian. Therefore, a realtor who knowingly “harbors” a dog on the seller’s property while the seller is not home may be statutorily liable even if it isn’t the realtor’s dog!

A realtor/broker should be proactive for an open house. Further, every realtor/broker should consider reviewing their errors and omissions coverage to determine potential invitee liability and that the coverage is sufficient to cover any significant negligence liability. As always, if you have any questions about a disclosure issue, we strongly encourage you to contact a qualified local real estate attorney for guidance.

Happy Holidays from Berlin Patten Ebling to you!

Berlin Patten Ebling, PLLC

Article Authored by Michael Schuchat

This communication is not intended to establish an attorney client relationship, and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.

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