All Topics / Legal & Accounting / I accept total liability…

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  • Profile photo of mathewc73mathewc73
    Participant
    @mathewc73
    Join Date: 2005
    Post Count: 241

    Hi People,
    Im reviewing a property management agreement I need to sign for a new purchase. Im a little concerned with the following:

    WARRANTY
    I warrant that the Property and the fittings and fixtures at the property are not in a dangerous condition and that if –
    1. any dangerous condition comes to my knowledge, I will notify <<the agent>> immediately of such dangerous condition;
    2. if any damage occurs to any person because of the dangerous condition of the Property, I will indemnify <<the agent>> and any sub-contractors against all legal claims and proceedings which may arise because of such dangerous condition

    Im just wondering, what if <<the agent>> was negligent in their duties? Should there be a clause or will it all be ok if something happened and it ended in court?

    It also states:
    AGENT’S INDEMNITY
    & LIABILITY
    I will hold and keep <<the agent>> indemnified against all actions, suits, proceedings, claims, demands, costs and expenses Whatsoever which may be taken or made against them in the course of, or arising out of the proper performance or exercise of any of the powers, duties or authorities of <<the agent>> pursuant to this Agreement.

    I guess my question is am I basicilly signing them a risk free contract that all falls on me if something goes wrong?

    Should I be scoping down these statements a little before signing?

    Any feedback greatly appreciated.

    Mat

    Profile photo of TerrywTerryw
    Participant
    @terryw
    Join Date: 2001
    Post Count: 16,213

    My non legal opinion is that agents have a duty of care, and this cannot be contracted out. So if something happens that is their fault, then they could be sued.

    I suppose it is like a doctor doing an operation. They may get you to sign all sorts of documents, but if they do not take adequate precautions etc they can be sued.

    Better ran this by your solicitor if youare worried?

    Terryw
    Discover Home Loans
    Parramatta
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    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Lawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au

    Profile photo of mathewc73mathewc73
    Participant
    @mathewc73
    Join Date: 2005
    Post Count: 241

    Thanks for the feedback Terry.

    Profile photo of TerrywTerryw
    Participant
    @terryw
    Join Date: 2001
    Post Count: 16,213

    On the other hand, I may have to disagree with myself.

    First you would have to determine if the real estate agent owes a duty of care to you the tenant. Is this established in law? If it is not established then there is no duty of care.

    It is like someone saying it is safe to cross the road, you cross and get hit by a bus. You cannot sue them as there is no established duty of care between the average person on the street and yourself.

    I don’t know the case law in this area, but you would suspect an agent is a professional, that is what you pay them for, so they have a duty, but this may not necessarily be so.

    Terryw
    Discover Home Loans
    Parramatta
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    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
    http://www.Structuring.com.au
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    Lawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au

    Profile photo of catacata
    Participant
    @cata
    Join Date: 2005
    Post Count: 559

    It would come down to liability. If the PM sent you a letter outlining possible problems and you chose not to fix the problem, you would be at fault and therefore liable.

    If the PM called you (with no hard copy or proof) and told you about a problem, which was not fixed, who is to blame.
    Were you told, really?
    Did you receive the phone call?
    Did you forget? ect.
    To many variables for me.
    I always get the PM to send me something in writing and I always reply in writing (and phone call) so that everything has a record.

    CATA
    Asset Protection Specialist
    [email protected]

    Profile photo of mathewc73mathewc73
    Participant
    @mathewc73
    Join Date: 2005
    Post Count: 241

    Hi thanks again for your feedback.

    Actually I think I just realised. Even if the agent was slack and so I was 100% responsible for any injury, I have insurance. So my insurance would pay anyway and I would (obviously) leave the agent :)

    Does this sound right?

    Mat

    Profile photo of elkamelkam
    Member
    @elkam
    Join Date: 2006
    Post Count: 722

    Hello Mat

    I think that if the insurance company can show that you were negligent (i.e ignored a problem that lead to the injury) they won’t pay the full amount out either.

    As Terry said. It may be worth while your giving your solicitor a call.

    Cheers
    Elka

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