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Sep 16, 1987

Landlord's Liability - Leased Premises #109

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By Gerry Neely
B.A. LL.B

What do the Province of British Columbia, the Municipalities of Enderby and Chilliwack, Hudson's Bay Company, Safeway, Grouse Nest, Royal Canadian Legion and landlord have in common? They have been sued under the Occupiers Liability Act by someone injured on premises over which they had a responsibility to ensure that the premises were reasonably safe for anyone using them.

Injuries occurred on parking lots stepped down one foot from the sidewalk giving access to the parking lot, from the failure to use non-skid paint on steps and around swimming pools, the failure to put up signs warning against diving off a wharf into water that was too shallow, from the installation of a concrete pad under an old locomotive engine over which children crawled. Not all actions were successful-liability was denied for injuries suffered by a woman at a wedding reception doing Grecian dances in high heels on a powdered wax wooden floor.

Until the enactment of the Occupiers Liability Act, a landlord might have been shielded from these liabilities. At common law, apart from contract or fraud, a landlord who leased unfurnished premises owed no duty to his tenant or any other person entering on those premises. This meant that while someone injured on the landlord's premises might be able to sue the tenant, he couldn't sue the landlord.

That limitation of liability was changed significantly by the Occupiers Liability Act. A landlord who leases unsafe premises is liable for damage to person or property if the landlord has agreed to be responsible for maintenance and repair. This applies regardless of what kind of premises are leased.

If the premises are residential and there is no agreement between the landlord and tenant as to who will repair, the landlord is still caught. The reason for this is the combination of the Occupiers Liability Act with the Residential Tenancy Act. Under the latter Act, a landlord has a statutory duty to maintain residential premises in a state of repair that complies with health and safety standards, including housing standards, required by law. Breach of this duty gives a tenant the right to sue for damages and the Occupiers Liability Act extends this right to any one entering upon the premises.

In one case, a landlord had constructed a sunken concrete walkway beside an unguarded and unlit stairwell which led to a basement entry. A visitor to the tenant occupying the house left it in the evening when it was almost dark, with the intention of crossing the yard to where his car was parked. He fell into the sunken walkway and suffered substantial injuries, including the loss of an eye. The evidence was that the sunken walkway violated the building codes and, in addition, good building practise would require a railing to have been placed on top of the retaining wall which separated the back yard from the sunken walkway. Damages in the amount of $33,000.00 were awarded to the injured visitor.

In another case, a railing surrounding a second floor landing had become so rotten that when a visitor to the tenant renting the house leaned against it, he fell and sustained severe injuries. In a third case, a railing around a porch fifteen feet above ground level broke under the weight of a visitor to the tenant's suite. The boards of the railing were rotten and, once again, liability was found.

In not every instance will a breach of the building code result in liability for injury. In one case, a tenant who rented a self-contained residence was injured when he fell down stairs within the house. No railing was on the stairs, which was a breach of the building code. However, the tenant couldn't establish that the absence of the handrail led to his fall.

In each instance, the tenant could have been sued, but instead the landlord was sued. Even if a tenant has agreed to provide liability insurance, these cases are strong arguments in favour of having either personal or commercial liability insurance in place, depending upon the extent of the business involved in the rentals.

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