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UBC Real Estate Licensing Exam > Chapter 2.1 Professional Liability > Flashcards

Chapter 2.1 Professional Liability Flashcards

1
Q

________________: involves a failure by a person to exercise a duty of care to their clients during the course of their business

A

Negligence

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2
Q

There are 3 parts to negligence, what are they?

A

1) Duty of Care: The defendant owed a legal duty to the plaintiff.
2) Breach of Duty: The defendant breached that duty by acting or failing to act.
3) Causation and Damages: The breach directly caused harm or injury to the plaintiff, resulting in damages.

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3
Q

Negligent misrepresentation =

One word

A

Careless

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4
Q

There are 4 parts to negligent misrepresentation, what are they?

A

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

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5
Q

For negligent misrepresentation, you do not need to know that the statement is _________, but know that the ______________________

A

False

Know the advice can be relied on

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6
Q

_____ /____________ result from the reliance of false information for negligent misrepresentation

A

Damages / loss

Meaning if someone tells you BS and you do not experience a loss due to it, than you cannot sue

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7
Q

For negligent misrepresentation, do you need a contractual relationship to be eligible for suing?

A

No sir!

You as a realtor alone now stand in a special position where people will rely on your information

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8
Q

What are some examples of when a licensee is acting negligent?

A

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

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9
Q

Fraudulent misrepresentation =

One word

A

Deceit!!

Aka, you knew the info was wrong and still said it

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10
Q

You do not need to be an ______ to be liable of fraudulent misrepresentation

A

Expert

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11
Q

Under fraudulent misrepresentation, you can be sued under _______ and ________ law

A

Tort - aka private / civil law

Contract law

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12
Q

Do you need a contractual relationship to sue someone under fraudulent misrepresentation

A

No sir! You simply need a special relationship (ex. Realtor or lawyer)

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13
Q

Fiduciary duty =

4 words

A

Upmost duty of care

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14
Q

4 components to fiduciary duty

A

1) Duty of Loyalty: Acting in the best interests of the beneficiary.
2) Duty of Care: Acting with the same care and diligence as a prudent person would.
3) Duty of Confidentiality: Keeping the beneficiary’s information private.
4) Duty of Good Faith: Acting honestly and with integrity in all dealings.

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15
Q

Negligent misrepresentation is the same as saying something without

A

Thinking about it

Not 100% sure if right or wrong

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16
Q

___________ could be writing a fake letter of employment

A

Identity Fraud

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17
Q

Anther example of _____________ could be fraudulently transferring property title to your name

A

Identity fraud

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18
Q

The last example of ________ is asking someone to act as your employer for a reference check

A

Identity fraud

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19
Q

________________: is the artificial inflation of the price of a piece of property

A

Value fraud

Reflects the property, whereas identity fraud reflects personal info

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20
Q

_________________: Employee commits a wrongful act at work, meaning both the employer and the employee can be sued

A

Vicarious Liability

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21
Q

If the employee commits a wrongful act outside of work, can the employer still be held liable and be sued?

A

No!! If the employee is off work and does something illegal, the employer is not held liable

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22
Q

If the employee has an incident outside of work due to mechanical issues (work equipment), who can you sue?

A

Both the employee and the employer

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23
Q

With vicarious liability, you can be sued for _________ (court can grant)

A

Damages

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24
Q

Realtors have no business hours, they are considered to be always working. Therefore the realtor is always considered _______

A

Liable

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25
Q

___________________: when someone other than the obligated party performs the contractual duties on behalf of the obligated party. In this arrangement, the original party remains responsible for ensuring the performance is completed as per the contract terms.

A

Vicarious performance

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26
Q

Give an example of vicarious performance

A

Example: a builder can require an employee or a sub-contractor to perform its obligations under a building construction agreement

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27
Q

What does “vicarious performance is not assigned” mean?

A

It means someone else performs the duties, but the original party remains responsible and there is no substitution of the contracting parties.

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28
Q

True or false vicarious performance is not permitted in the case of personal contracts

A

True

Vicarious performance is not permitted for personal contracts due to the need for the specific individual’s unique skills or qualities.

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29
Q

What are 3 ways to protect yourself from negligence

Aka: how to avoid getting sued for negligence

A
  • 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
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30
Q

Reminder, the BCFSA can

A

Cancel licenses

And

Discipline a licensee

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31
Q

Reminder, Real estate boards can

A

Expel the licensee from the board

Make you pay for the cost of a hearing

Prevent access to the MLS

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32
Q

There are 3 types of trespass

Hint: they start with wrongful

A

1) wrongful entry
2) wrongful remaining
3) wrongful placing

33
Q

Wrongful entry is what?

A

Type of trespass

Voluntary actions, enters without permission (I.e step on property)

34
Q

Wrongful remaining is what?

A

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

35
Q

Wrongful placing is what?

A

A type of trespass

Caused by an object to be wrongfully placed (soccer ball over fence, garbage on property)

36
Q

What are the 3 characteristics of trespass

A

1) intentional
2) direct
3) actionable per se

37
Q

Intentional

1/3 characteristics of Trespass

A

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

38
Q

Direct

1/3 characteristics of Trespass

A

Cannot be an indirect result of another act or occurrence

Aka: you can’t be pushed

39
Q

Actionable per se

1/3 characteristics of Trespass

A

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

40
Q

Remedies to Trespass

A

Self-help
Injunction
Damages

Acronym: SID

41
Q

Self-help (one remedy to trespass)

A

Telling someone to getaway or stay off the property

Can’t use extreme force or guns or violence

42
Q

There are multiple exceptions to trespass, name a couple

A

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

43
Q

Exception to trespass #1- involuntary action

A

Someone pushed you or forced you to go on to someone’s land

Or the seller asks you to go onto someone’s land

44
Q

Trespass exception #2 - lawful exercise of a right of way

A

A person who has an easement is not trespassing when exercising the right of way

Example: BC hydro walking across land

45
Q

Exception to trespass #2 - express of implied permission of the occupier

A

A person entering on land to speak to the occupier will not be a trespasser

UNLESS, you ignore a “no solicitation” sign

46
Q

Exception to trespass #4 - airplane flying on top of your property

A

Not a trespass unless it crashes onto your property

47
Q

Exception to trespass #5 - entry under a statutory authority

A

Such as the government

Example: mailman

48
Q

Exception to trespass #6 - entry by a person in order to abate a nuisance

A

People may take action themselves to

Stop a Tort from continuing (such as someone coming to stop a party)

49
Q

___________ is an intentional tort, meaning the act of trespassing must be __________

A

Trespass

Voluntary

50
Q

________________: interfering with the use and enjoyment of or causes damages to the property of another (proprietary rights)

A

Nuisance

51
Q

What are the two factors in order for nuisance to be valid

A

1) physical damage (need to prove it)

2) interference with the use and enjoyment

52
Q

What are the two types of nuisance

A

1) public

2) private

53
Q

Public nuisance

A

The interference with rights owed to population at large

Affects multiple people at once

Such as a company releasing pollution to a city

54
Q

Private nuisance

A

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

55
Q

Key principle of a _____________ is focused on the harm done to the injured party’s land or the interference with that party’s proprietary rights

A

Private nuisance

The action isn’t the nuisance, it is the harm done

56
Q

2 defences to nuisance (aka how to save your ass from a lawsuit)

A

1) the nuisance is an unavoidable (result of an act authorized by statute without creating a nuisance - pollution)
2) damage is trifling/unimportant (very little consequences)

57
Q

Examples of defences that wouldn’t be valid for nuisance

A

1) plaintiff moved to nuisance (living next to airport)
2) mailman, bc hydro, legal right of way
3) there is no other place suitable

58
Q

Remedies to private nuisance

A

1) Abatement
2) Injunctive relief (injunction)
3) Damages

Acronym: AID

59
Q

Abatement means

A

Peaceful prevention

60
Q

Damages mean

A

Money

Get replacement cost only

61
Q

4 Major differences of trespass and nuisance

A

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

62
Q

An occupier has _____________ of a property and does not necessarily need to have ownership of it

A

Physical possession

Ex. Landlord or a friend asked to housesit

63
Q

Levels of Occupier Liability Act (3-4 levels)

A

1) children
2) visitors
a) invitee
b) licensee
3) trespasser

64
Q

Occupiers liability act: children

A

High duty of care is to children as they are unable to sense danger

Must be supervised

65
Q

Occupiers liability act: invitee

A

Implicit/explicit permission to enter property

Generally an occupier has an economic interest with an invitee

YOU at open houses, salesman, store customer

Examples: Customer at grocery store

66
Q

Occupiers liability act: Licensee

A

No economic interest

Social visits (friends / family)

67
Q

Occupiers liability act: Trespasser

A

Lesser duty of care, no harm can be done to them

Only need to prevent physical harm to a criminal

68
Q

Acronym to remember Occupiers liability act:

A

CILT

Children
Invitee
Licensee
Trespass

69
Q

The _________________ made changes to the common law

A

Occupiers liability act:

70
Q

Common law has now been replaced by legislation in most of the provinces in Canada, all thanks to

A

Occupiers liability act:

71
Q

The ______________ does not extend to risks willingly assumed by a visitor at his or her work

A

Occupiers liability act:

72
Q

3 Responsibilities of an Occupier (ex. tenant, landlord, or both):

A

1) Conditions of the Premises: Ensuring the physical state of the property is safe and well-maintained.
2) Activities on the Premises: Managing and supervising activities to prevent accidents or injuries.
3) Persons Allowed to Enter: Controlling who is permitted to enter the property and ensuring their safety while
on the premises

73
Q

Occupiers owe a duty of care to:

A

1) Children
2) Invitees
3) Licensees
4) Trespassers

74
Q

True or False a contractual relationship must exist in order for there to be negligent misrepresentation

A

False

75
Q

What could a defendant use as a defence to a claim and negligence against him?

A

The damage suffered by the plaintiff was not reasonably foreseeable by a person in the defendants position

Ex. Realtor does standard inspection of home and tells the client it’s a good home. Later on a structural defect is found but the client cannot win a lawsuit as the realtor did his due diligence and had no way of knowing if the hidden defect

76
Q

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

A

True

77
Q

Is this considered trespassing? Your frisbee goes over the neighbours fence and lands in their yard

A

Yes

78
Q

Which of the following is not a likely remedy for private nuisance?
- Abatement
- Injunction
- Damages
- Specific Performance

A

Specific performance

Remember the acronym AID

79
Q

An example of vicarious liability outside of work with mechanical issues is what

A

An employee has a work vehicle. The employee crashed the car because the brakes were faulty and hit someone. The car belongs to the employer but the employee is driving it outside of work hours but it’s still Vicarious Liability

UBC Real Estate Licensing Exam (24 decks)

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