Chapter 2.1: Professional Liability Flashcards
________________: involves a failure by a person to exercise a duty of care to their clients during the course of their business
Negligence
There are 3 parts to negligence, what are they?
1) duty of care - reasonable foresee (know that the advice supplied would be relied on)
2) The standard duty of care owed it breached
3) reasonable result - reasonably foreseeable damage
Negligent misrepresentation =
One word
Careless
There are 4 parts to negligent misrepresentation, what are they?
1) must be an untrue statement
2) it must have been made negligently
3) must be a special relationship giving rise to a duty of care (no contract is needed to sue)
4) must be reasonable reliance by the plaintiff on the negligent statement
For negligent misrepresentation, you do not need to know that the statement is _________, but know that the ______________________
False
Know the advice can be relied on
_____ /____________ muse result from the reliance of false information for negligent misrepresentation
Damages / loss
Meaning if someone tells you BS and you do not experience a loss due to it, than you cannot sue
For negligent misrepresentation, do you need a contractual relationship to be eligible for suing?
No sir!
You as a realtor alone now stand in a special position where people will rely on your information
What are some examples of when a licensee is acting negligent?
1) not delivering a listing agreement
2) no doing a title search
3) failing to disclose any material facts
4) do not recommend inserting clauses into an offer
5) fail to verify information in listing agreement
6) incorrectly ascertaining the boundaries of a property
Fraudulent misrepresentation =
One word
Deceit!!
Aka, you knew the info was wrong and still said it
You do not need to be an ______ to be liable of fraudulent misrepresentation
Expert
Under fraudulent misrepresentation, you can be sued under _______ and ________ law
Tort - aka private / civil law
Contract law
Do you need a contractual relationship to sue someone under fraudulent misrepresentation
No sir!
Fiduciary duty =
4 words
Upmost duty of care
4 components to fiduciary duty
Relationship is confidential
Full disclosure to your client
Duty of upmost good faith
Advantageous price
never ignore information told to you
Negligent misrepresentation is the same as saying something without
Thinking about it
Not 100% sure if right or wrong
___________ could be writing a fake letter of employment
Identify Fraud
Anther example of _____________ could be fraudulently transferring property title to your name
Identity fraud
The last example of ________ is asking someone to act as your employer for a reference check
Identity fraud
________________: is the artificial inflation of the price of a piece of property
Value fraud
Reflects the property, whereas identity fraud reflects personal info
_________________: Employee commits a wrongful act at work, meaning both the employer and the employee can be sued
Vicarious Liability
If the employee commits a wrongful act outside of work, can the employer still be held liable and be sued?
No!! If the employee is off work and does something illegal, the employer is not held liable
If the employee has an incident outside of work due to mechanical issues, who can you sue?
Both the employee and the employer
With vicarious liability, you can be sued for _________
Damages
Realtors have no business hours, they are considered to be always working. Therefore the realtor is always considered _______
Liable
___________________: the concept whereby the legal obligations upon a party in a contract are performed by a third party, with the liability for performance remaining with the particular contractual party
Vicarious performance
Give an example of vicarious performance
Example: a builder can require as employee or a sub-contractor to perform its obligations under a building construction agreement
Vicarious performance is not ____________. It does not result in the substitution of one of the original contracting parties for another
Not assignment!
________________ is not permitted in the case of personal contracts
Vicarious performance
It’s not a personal contract - it is still the company
What are 3 ways to protect yourself from negligence
Aka: how to avoid getting sued for negligence
- refuse to give the advice (over answering questions in open houses)
- give a clear qualification - “do not rely on my opinion”
- damages / loses result wasn’t reasonable foreseeable
Reminder, the BCFSA can
Cancel licenses
And
Discipline a licensee
Reminder, Real estate boards can
Expel the licensee from the board
Make you pay for the cost of a hearing
Prevent access to the MLS
There are 3 types of trespass
Hint: they start with wrongful
1) wrongful entry
2) wrongful remaining
3) wrongful placing
Wrongful entry is what?
Type of trespass
Voluntary actions, enters without permission (I.e step on property)
Wrongful remaining is what?
Type of trespass
Remaining on the property after being asked to leave (after right to stay has ended)
Example: kicked out and refused to leave
Wrongful placing is what?
A type of trespass
Caused by an object to be wrongfully placed (soccer ball over fence, garbage on property)
What are the 3 characteristics of trespass
1) intentional
2) direct
3) actionable per se
Intentional
1/3 characteristics of Trespass
Trespasser must have control over his or her actions (voluntary)
In example, voluntarily walk across the field to catch the bus in time
Not due to being pushed or threatened
Direct
1/3 characteristics of Trespass
Cannot be an indirect result of another act or occurrence
Aka: you can’t be pushed
Actionable per se
1/3 characteristics of Trespass
Physical damage doesn’t need to occur for an occupier to sue in trespass
Feet on land = trespass, even if no damage or vandalism occurred
Remedies to Trespass
Self-help
Injunction
Damages
Acronym: SID
Self-help (one remedy to trespass)
Telling someone to getaway or stay off the property
Can’t use extreme force or guns or violence
There are multiple exceptions to trespass, name a couple
1) involuntary actions
2) lawful exercise of a right of way
3) express of implied permission of the occupier
4) airplane flying on top of your property
5) entry under a statutory authority
6) entry by a person in order to abate a nuisance
Exception to trespass #1- involuntary action
Someone pushed you or forced you to go on to someone’s land
Or the seller asks you to go onto someone’s land
Trespass exception #2 - lawful exercise of a right of way
A person who has an easement is not trespassing when exercising the right of way
Example: BC hydro walking across land
Exception to trespass #2 - express of implied permission of the occupier
A person entering on land to speak to the occupier will not be a trespasser
UNLESS, you ignore a “no solicitation” sign
Exception to trespass #4 - airplane flying on top of your property
Not a trespass unless it crashes onto your property
Exception to trespass #5 - entry under a statutory authority
Such as the government
Example: mailman
Exception to trespass #6 - entry by a person in order to abate a nuisance
People may take action themselves to
Stop a Tort from continuing (such as someone coming to stop a party)
___________ is an intentional tort, meaning the act of trespassing must be __________
Trespass
Voluntary
________________: interfering with the use and enjoyment of or causes damages to the property of another (proprietary rights)
Nuisance
What are the two factors in order for nuisance to be valid
1) physical damage (need to prove it)
2) interference with the use and enjoyment
What are the two types of nuisance
1) public
2) private
Public nuisance
The interference with rights owed to population at large
Affects multiple people at once
Such as a company releasing pollution to a city
Private nuisance
Owner or occupier of land unreasonably and substantially interferes with the reasonable use and enjoyment of neighbouring properties
Constant Loud music, constantly fixing loud cars
Key principle of a _____________ is focused on the harm done to the inured party’s land or the interference with that party’s proprietary rights
Private nuisance
The action isn’t the nuisance, it is the harm done
2 defences to nuisance (aka how to save your ass from a lawsuit)
1) the nuisance is an unavoidable result of an act authorized by statute without creating a nuisance (pollution)
2) damage is trifling (very little consequences)
Examples of defences that wouldn’t be valid for nuisance
1) plaintiff moved to nuisance (living next to airport)
2) mailman, bc hydro, legal right of way
3) there is no other place suitable
Remedies to private nuisance
1) Abatement
2) Injunctive relief (injunction)
3) Damages
Acronym: AID
Abatement means
Peaceful prevention
Damages mean
Money
Get replacement cost only
Major differences of trespass and nuisance
1) trespass - act done to another’s land
1) nuisance - act done to own land, which affects others land
2) trespass - no damage proven
2) nuisance - must prove interference with enjoyment / use OR physical damage
3) trespass - usually occurs once or 2
3) nuisance - occurs repeatedly
4) trespass - SID
4) nuisance - AID
Occupier has _____________ not __________
Physics possession
Ownership
Levels of Occupier Liability Act
1) children
2) invitee
3) licensee
4) trespasser
Occupiers liability act: children
Highway duty of care is to children as they are unable to sense danger
Must be supervised
Occupiers liability act: invitee
Occupier has an economic interest
YOU at open houses, salesman, store customer
Examples: Customer at grocery store
Occupiers liability act: Licensee
No economic interest
Social visits (friends / family)
Occupiers liability act: Trespasser
Lesser duty of care, no harm can be done to them
Only need to prevent physical harm to a criminal
Acronym to remember Occupiers liability act:
CILT
Children
Invitee
Licensee
Trespass
The _________________ made changes to the common law
Occupiers liability act:
Common law has now been replaced by legislation in most of the provinces in Canada, all thanks to
Occupiers liability act:
The ______________ does not extend to risks willingly assumed by a visitor at his or her work
Occupiers liability act:
Responsibility of an Occupier (tenant, landlord, or both):
1) the conditions of the premises (no ice salt, hole for missing swimming pool)
2) the activities conducted on those premises
3) the persons allowed to enter those premises
Responsibility of an occupier (tenant, landlord, or both)
Duty of care applies to:
1) the conditions of the premises
2) activities of the premises
3) the conduct of the 3rd parties
In order for a training services representative to be liable for negligent misrepresentation, certain facts must be proven. Which of the following is not a requirement for establishing a claim based upon negligent misrepresentation
A contractual relationship must exist between the representative and the person to whom the representation is made
Which of the following could a defendant use as a defence to a claim and negligence against him?
The damage suffered by the plaintiff was not reasonably foreseeable by a person in the defendants position 
Where an employee is negligent in the performance of his or her duties of employment , the employer may be liable for any foreseeable damages under the principle of vicarious liability
True
Is this considered trespassing? Your boss/frisbee goes over the neighbours fence and lands in their yard
Yes
Which of the following is not a likely remedy for private nuisance?
Specific performance
Remember the acronym AID
An example of vicarious liability outside of work with mechanical issues is what
Outside of business hours but the bus breaks fail to stop and the bus crashes causing an accident
