2.1 - Professional Liability

Question 1

What is negligence?

Answer 1

failure by a person to exercise a duty of care to their client during the course of their business

Question 2

what are the 3 things that must occur for negligence?

Answer 2

1. duty of care (has to foresee that advice may be relied on)
2. standard duty of care owed is breached
3. can reasonably foresee the damages

Question 3

what are some examples of a real estate licensee being negligent?

Answer 3

not doing title search
not disclosing material facts
being wrong in property boundaries

Question 4

what are 4 aspects of negligent misrepresentation?

Answer 4

1. statement is untrue
2. statement made negligently (carelessly)
3. must be special relationship leading to duty of care (not necessarily contractual)
4. must be reasonable reliance by plaintiff

Question 5

what is fraudulent misrepresentation? who can be liable for it?

Answer 5

moral fraud (lying, deceiving)
don’t need to be an expert to be liable, don’t need contractual relationship

Question 6

what types of law can you be sued under for fraudulent misrepresentation?

Answer 6

tort and contract

Question 7

what is fiduciary duty?

Answer 7

utmost duty of care - confidential relationship, full disclosure, good faith, good price

Question 8

what is value fraud?

Answer 8

artificial inflation of a price of a piece off property

Question 9

what is vicarious liability?

Answer 9

a legal principle - when employee commits wrongful act in the course of employment, injured party can sue employee and employer (if employee commits wrongful act at work, for example)

Question 10

what is vicarious performance?

Answer 10

concept whereby legal obligations upon a party are performed by a 3rd party, but liability is still with the original party.
NOT assignment, doesn’t substitute.
Not permitted in the case of personal contracts

Question 11

How can a licensee avoid negligence?

Answer 11

avoid to give advice, put a disclaimer, if damages weren’t foreseeable

Question 12

what are the 3 types of trespass?

Answer 12

wrongful entry (entering without permission)
wrongful remaining (stays after right to stay has ended)
wrongful placing (of an object)

Question 13

what are the 3 characteristics of trespass?

Answer 13

intentional
direct (not indirect result of another action - like getting pushed on)
actionable per se (not necessarily physical damage)

Question 14

if you see a ‘no solicit’ sign but go on land to talk to occupier, is that trespassing?

Answer 14

yes

Question 15

if someone goes on land to stop a tort from continuing, is that trespassing?

Answer 15

no

Question 16

is it trespassing if you didn’t know you were trespassing?

Answer 16

yes

Question 17

what are the 3 remedies to trespass?

Answer 17

SID
self-help (owner forcibly removes)
injunction (court order says to stop)
damages (NO need to prove - damages for loss in value)

Question 18

what is a nuisance?

Answer 18

interference w/ use and enjoyment of OR causes damage to property (needs proof) of another

Question 19

what is public vs private nuisance?

Answer 19

public: population at large - polluting factory
private: neighbour (owner/occupier)

Question 20

what are 2 defences for nuisance?

Answer 20

has to be done bc of a statute
very little consequence

Question 21

if someone moved next to an airport, can they claim nuisance?

Answer 21

no, their choice to move

Question 22

what are the 3 remedies to private nuisance?

Answer 22

AID
abatement (peaceful prevention)
injunctive relief
damages (replacement cost only)

Question 23

do you have to prove damage in trespass or nuisance?

Answer 23

trespass - no
nuisance - yes

Question 24

what is the occupiers liability act?

Answer 24

governs the occupiers of land to have duty of care

Question 25

what are the 3 responsibilities of an occupier - duty of care has to apply to these (tenant/landlord/both)?

Answer 25

condition of premises
activities conducted on premises
people allowed to enter premises (duty of care to their conduct)

Question 26

standard of care ranking: trespassers, kids, social visits, licensee (economic interest)

Answer 26

kids
economic interest
social visit
trespasser