Iowa Supreme Court says it all boils down to possession of the property.
One of the most common hazards at a showing? Slip and falls—and the lawsuits that might follow. But the particular circumstances of a case can have a big effect on the legal outcome, as demonstrated by a recent Iowa lawsuit in which a prospective buyer’s fall on the property didn’t result in broker liability.
The case: After she slipped, fell, and injured herself on the icy driveway at a vacant for-sale home, prospective buyer Amanda DeSousa sued the homeowners, Matthew and Melissa Fynaardt, and the listing brokerage, Iowa Realty. Neither the Fynaardts nor the Iowa Realty broker were at the property that morning.
DeSousa, who visited the property with her buyer’s agent, alleged the defendants were negligent because they didn’t warn her about or remedy the icy driveway. Iowa Realty argued it owed no duty because it didn’t own the property, none of its agents were there at the time and the danger was obvious. But DeSousa argued there was a material fact as to whether the list- ing broker controlled the property.
The ruling: The Dallas County District Court denied Iowa Realty’s motion for summary judgment, saying a jury could plausibly find the brokerage should have cleared the area.
Iowa Realty appealed the denial to the Iowa Supreme Court. The argument on both sides turned to whether the listing broker had a duty to protect prospective buyers from hazards on a property as the “possessor.” Relying on state precedent, the court noted that a land possessor is someone who:
- Occupies and controls the land
- Is entitled to immediate occupancy and control, if no one else is
- Had occupied and controlled it, if no one subsequently became a possessor
The court reversed the lower court’s decision, ascribing a duty of safety only to the homeowners as “possessors” of the property. The justices noted that Iowa Realty’s sell- ing role didn’t entitle the brokerage or its agents to occupy or control the property, likening the situation to vacationing homeowners leaving their keys with a neighbor. The court held that scheduling a showing doesn’t transfer control, so Iowa Realty couldn’t be held responsible for DeSousa’s injuries. While the court didn’t explicitly say so, it can be inferred from the language of the decision and from past case law that had the listing broker been there, the court might have found him liable in a “dual possession” capacity because he was conducting business on behalf of the owner.
Best practices: The case centered around an accident that followed an overnight winter storm, not a condition that could have been known in advance by
the listing agent. However, if there are known property hazards in a listing, it’s important for the listing broker to review them with the sellers and note them in the MLS. That’s especially important for vacant properties. And keep those insurance policies up-to-date.
©National Association of REALTORS®
Reprinted with permission
