BROKER RISK MANAGEMENT
WEEKLY PRACTICE TIP
Shoes Off Advisory
QUESTION: My Sellers are very meticulous about their home and they do not want anyone coming inside wearing shoes, bringing in animals or doing anything which might result in damage to their pristine hardwood floors and carpets. The Sellers have told me that I must require brokers, agents, prospective buyers and anyone else who enters their home to remove their shoes and conduct their visit in either stocking feet or use disposable shoe coverings. Are there any liability issues for the Sellers and, if so, what is the best way for my brokerage to warn the Sellers?
ANSWER: Requiring everyone who enters a home that is listed for sale to remove their shoes and/or to not allow people to bring their animals into the premises does create significant liability exposure for Sellers and Listing Agents. There are two primary areas of concern:
1. PERSONAL INJURY: When people are invited into an open house or allowed access to a home for viewing or other purposes, there is an implied promise that it is safe for people to enter. The best practice is to make the listing safe by removing tripping hazards and minimizing other possible hazards. Requiring all people who enter a listing to remove their shoes or wear shoe coverings is known to increase the possibility of a slip-and-fall accident, especially on hardwood and other hard flooring surfaces.
2. FAIR HOUSING: Federal and state laws require Landlords, Sellers and real estate licensees to provide equal access to all people and that reasonable accommodations need to be made for people who have disabilities. It is often not feasible for people who are disabled and need assistance in walking by means of braces, canes, crutches, walkers, or wheelchairs (either permanently or temporarily) to remove their shoes; it would be a potential violation of the fair housing laws to require individuals with disabilities to remove their shoes.
Federal and state laws also require Landlords, Sellers, and real estate licensees to make reasonable accommodations for people who have service and/or companion animals. Requiring people who have service and/or companion animals to leave their animals outside or to carry their animals has resulted in fair housing claims against real estate professionals and the property owners that they represent. Even questioning someone as to whether or not their animal constitutes a legitimate service or companion animal has been the basis for investigations by the Department of Fair Employment and Housing. The medical profession has recognized that there is a wide array of animals that can provide comfort to people who have mental or emotional issues and thus real estate professionals should refrain from barring any animal.
PRACTICE TIPS:
1. Encourage all Landlords and Sellers to review their potential liability exposure with their own insurance broker as well as a qualified California real estate attorney if they insist that all people invited to the property must remove their shoes and/or that they cannot bring their animals into the home.
2. The best way to document that Sellers and Landlords have received the correct advice is to use a written Advisory such as the attached (*) PREMISES LIABILITY ADVISORY REGARDING “SHOES OFF” REQUESTS; AGREEMENT TO HOLD BROKER HARMLESS. It is not necessary that all Sellers and/or Landlords receive this Advisory; it is simply needed when the property owner has specifically made a request to have visitors remove their shoes and/or requests that visitors not have any animals with them.
3. Be aware that there are several fair housing testing groups that are actively looking for people who discriminate against
people with disabilities, especially those individuals who discriminate against people with service and/or companion animals. Avoid advertising in any medium (print, websites or other forms of social media) that there is a “no pets” policy at any property that is listed for sale or rent. That type of commentary is an invitation to be tested, investigated by a governmental agency, and/or sued.
WEEKLY PRACTICE TIP: DO NOT FORWARD TO CLIENTS. This Weekly Practice Tip is for the exclusive use of clients of Broker Risk Management and their agents. It may not be reproduced or distributed without the express written consent of Broker Risk Management. The advice and recommendations contained herein are not necessarily indicative of standards of care in the industry, but rather are intended to suggest good risk management practices.
© Copyright Broker Risk Management 2017 06/09/17
ADVISORY FORM FOLLOWS:
PREMISES LIABILITY ADVISORY REGARDING “SHOES OFF” REQUESTS; AGREEMENT TO HOLD BROKER HARMLESS
Property:______________________________________________________________
Seller/Landlord:________________________________________________________
Seller/Landlord has requested that __________________(“Broker”) require all brokers, Sales Associates, prospective buyers, tenants and other invitees to the Property (including Open House invitees) to remove their shoes upon entry and conduct their visits in stocking feet or with the use of disposable shoe coverings. Seller/Landlord understands, acknowledges and agrees that Broker may only make that request of visitors, but cannot force anyone to remove their shoes.
Seller/Landlord is advised that there is an increased possibility of a slip and fall and/or some other form of personal injury incident when visitors are required to be in their stocking feet and/or use disposable shoe coverings; this is especially hazardous when there are hardwood and other hard flooring surfaces. Seller/Landlord acknowledges and understands that Broker and its Sales Associates do not recommend any type of “shoes off” requirements. Seller/Landlord is strongly encouraged to consult with Seller’s/Landlord’s insurance and legal advisors regarding the risks and liabilities surrounding such requests.
Seller/Landlord understands, acknowledges and agrees that reasonable accommodations shall be made for people with disabilities and that these individuals will not be required to remove their shoes and/or to cease using any mobility aids, including but not limited to canes, crutches, walkers and wheelchairs. Seller/Landlord further understands, acknowledges and agrees that Broker cannot prevent any person from bringing their service or comfort animal into the premises.
By signing below, Seller/Landlord understands, acknowledges and agrees that Seller/Landlord is choosing to impose a “shoes off” request relative to Open House and all other showings and visits to the Property during the listing period and pendency of any sale thereof against the advice of Broker. Seller/Landlord expressly agrees that, in consideration of Broker’s willingness to provide for and/or dispense disposable shoe coverings or to otherwise promote the Seller’s/Landlord’s request that visitors remove their shoes, that Seller/Landlord shall hold harmless, indemnify and defend Broker, its Sales Associates, officers and employees for any losses suffered by Broker relating to or arising from Seller’s “shoes off” policy.
Date:___________________ ______________________________________
Seller/Landlord
______________________________________
Seller/Landlord
Date: ___________________ ____________________________________
Broker/Agent