2.1 - Professional Liability Flashcards
What is negligence?
failure by a person to exercise a duty of care to their client during the course of their business
what are the 3 things that must occur for negligence?
- duty of care (has to foresee that advice may be relied on)
- standard duty of care owed is breached
- can reasonably foresee the damages
what are some examples of a real estate licensee being negligent?
not doing title search
not disclosing material facts
being wrong in property boundaries
what are 4 aspects of negligent misrepresentation?
- statement is untrue
- statement made negligently (carelessly)
- must be special relationship leading to duty of care (not necessarily contractual)
- must be reasonable reliance by plaintiff
what is fraudulent misrepresentation? who can be liable for it?
moral fraud (lying, deceiving)
don’t need to be an expert to be liable, don’t need contractual relationship
what types of law can you be sued under for fraudulent misrepresentation?
tort and contract
what is fiduciary duty?
utmost duty of care - confidential relationship, full disclosure, good faith, good price
what is value fraud?
artificial inflation of a price of a piece off property
what is vicarious liability?
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)
what is vicarious performance?
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
How can a licensee avoid negligence?
avoid to give advice, put a disclaimer, if damages weren’t foreseeable
what are the 3 types of trespass?
wrongful entry (entering without permission)
wrongful remaining (stays after right to stay has ended)
wrongful placing (of an object)
what are the 3 characteristics of trespass?
intentional
direct (not indirect result of another action - like getting pushed on)
actionable per se (not necessarily physical damage)
if you see a ‘no solicit’ sign but go on land to talk to occupier, is that trespassing?
yes
if someone goes on land to stop a tort from continuing, is that trespassing?
no
is it trespassing if you didn’t know you were trespassing?
yes
what are the 3 remedies to trespass?
SID
self-help (owner forcibly removes)
injunction (court order says to stop)
damages (NO need to prove - damages for loss in value)
what is a nuisance?
interference w/ use and enjoyment of OR causes damage to property (needs proof) of another
what is public vs private nuisance?
public: population at large - polluting factory
private: neighbour (owner/occupier)
what are 2 defences for nuisance?
has to be done bc of a statute
very little consequence
if someone moved next to an airport, can they claim nuisance?
no, their choice to move
what are the 3 remedies to private nuisance?
AID
abatement (peaceful prevention)
injunctive relief
damages (replacement cost only)
do you have to prove damage in trespass or nuisance?
trespass - no
nuisance - yes
what is the occupiers liability act?
governs the occupiers of land to have duty of care
what are the 3 responsibilities of an occupier - duty of care has to apply to these (tenant/landlord/both)?
condition of premises
activities conducted on premises
people allowed to enter premises (duty of care to their conduct)
standard of care ranking: trespassers, kids, social visits, licensee (economic interest)
kids
economic interest
social visit
trespasser
