QUESTION: Our office has been debating whether or not to use the new CAR Property Visit and Open House Advisory (PVOH). Can you provide guidance on the pros and cons of using this form when representing Sellers and/or Buyers? Can it also be used when leasing property?
ANSWER: This new Advisory provides generic warnings about some of the risks that Visitors (including potential Buyers and Tenants) might encounter. It is not a form required by statute, common law or contract. However, depending upon the circumstances, it can be a useful tool regardless of who the Agent is representing.
I. Why Agents Representing Prospective Buyers/Tenants Should Consider Using the PVOH:
Not all property owners and Listing Agents disclose the existence of recording equipment. Whether or not there is a disclosure regarding the existence of recording devices, prospective Buyers and Tenants should always be warned to say nothing about the Property while viewing it (both inside and outside of the dwelling unit). Property owners have been known to listen in on visitors’ comments and have rejected certain prospects based upon what they heard (e.g., negative comments about the owners’ decorating taste) or have used the visitors’ comments regarding price and strategies against the Visitors in future negotiations.
AUDIO/VIDEO RECORDING DEVICES: One of the positive aspects of using this Advisory is that Visitors are warned in the first paragraph that they may be recorded by video or audio equipment, that their commentary could be used against them and that therefore Visitors should “take the possibility of the presence of such devices into account during their viewing.” Sadly, this is as far as the form goes in making any recommendations to prospective Buyers and Tenants. Agents representing Buyers and Tenants should consider using this Advisory as an appropriate means of starting the conversation with their clients about the need for them to “keep quiet” while visiting properties that are for sale or lease.
VISITOR SAFETY: Accidents resulting in damages, injuries or worse can and do occur at open houses and while touring property; thus, clients need to be warned to protect themselves from common risks that cause slipping, tripping and falling. These risks are explained in the Visitor Safety portion of the PVOH form. Injuries and/or allergic reactions from household animals or pets is also a possible risk that is explained in the third paragraph of the Advisory. NOTE: See Practice Tip 5 below regarding what needs to be done with known hazards.
MINORS: Unfortunately, many parents who are viewing property pay little or no attention to the actions of their own children. Unsupervised minors have also sustained injuries and/or caused property damage. It is often difficult for Agents to broach this subject with clients; fortunately, this new Advisory makes it clear that Visitors who bring minors to the property are “responsible for their care, safety, and conduct in the Property.”
Although the form is not perfect and it will not completely protect the Agent from all possible claims, this Advisory is a good first step in helping Visitors understand that they need to be careful while visiting property.
If a Brokerage decides to implement use of this Advisory with their Buyers/Tenants, then the PVOH should be provided to ALL prospective Buyers/Tenants regardless of the type of property that is being visited and regardless of whether the prospective Buyers/Tenants have minor children or any other factor. There should be no selective distribution or use of this Advisory. Agents should not assume that some prospective Buyer/Tenant clients do or do not need to receive this Advisory. Those assumptions could create a potential violation of the fair housing laws.
II. Why Agents Representing Property Owners Should Consider Using the PVOH:
Asking that all Visitors sign this new Advisory may be a useful tool in protecting property owners and Listing Agents if there is an accident or injury. It would be the prudent course of action to have proof that all Visitors were warned of potential risks and that they were advised to “exercise caution.”
Requiring that a signed PVOH must be presented as a condition precedent to a Visitor securing a viewing appointment (in the same way that the PEAD-V form is being used to comply with state safety requirements) is a logical approach. It may be far more difficult for Listing Agents to secure Visitors’ signatures on the form when conducting an Open House (once those are again allowed).
III. What the PVOH Does Not Do:
Although the PVOH form has a paragraph entitled “Assumption of the Risk,” that provision is legally inadequate to completely protect property owners and Agents from being sued if a Visitor is injured.
Notwithstanding the potential benefits of warning Visitors that there are risks in visiting any property, the PVOH does not eliminate the responsibility of both the property owner and the Listing Agent to either: (a) correct the hazard to prevent any harm; and/or (b) properly warn Visitors of the existence of the known risk at a specific property.
If a known hazard cannot be corrected or cured, then clearly, visible warning signs need to be posted near the hazard alerting Visitors of that hazard. It is not sufficient for Agents to merely tell visitors as they enter a listed property to “be careful.” Reasonable efforts must be taken to visibly warn visitors of potential harms.
For example, putting the household pet in one part of the property is a good idea to protect the pet and the Visitors, but access to that part of the property needs to be prevented; posting a large warning sign on the locked door (e.g., “ACCESS PREVENTED TO PROTECT HOUSEHOLD PET”) is a safer approach if the animal cannot be completely removed from the property during showings.
Wet steps, slick or uneven surfaces, tripping hazards, rickety stairs, dark stairwells and glass walls that appear to be an opening to the outside have all lead to multiple personal injury claims by property Visitors and, in some cases, death. If there is even a possibility that someone could be injured because of a particular feature of the Property (e.g., a floor hatch that leads to a basement), the best practice is to completely prevent access to the unsafe area and post large warning signs.
PRACTICE TIPS:
- Brokers/Agents working with Buyers/Tenants should consider using the PVOH Advisory as a means to discuss how the clients should comport themselves while visiting properties but only if there is consistent implementation. This form can be used with the PEAD-V form.
- Listing Brokers/Agents should consider using the new PVOH Advisory but only if there is consistent implementation. This form can be requested when securing the PEAD-V form from the Agent working with prospective Buyers/Tenants.
- Listing Agents who know that there is an actual or potential hazard at the Property should either work with the Owner to correct or cure the hazard or provide adequate warning signs to prevent injury.
- If a Brokerage decides to implement use of this Advisory with their listings, then the PVOH should be provided to ALL Visitors regardless of the type of property that is being visited, regardless of who represents the Visitor and regardless of whether the prospective Buyer/Tenant has minor children or any other factor. There should be no selective distribution or use of this Advisory. Agents should not assume that some Visitors do or do not need to receive this Advisory. Those assumptions could create a potential violation of the fair housing laws.
- KNOWN HAZARDS: If the listed Property is in really bad condition (e.g., it is a tear-down, it has been red-tagged, has environmental hazards), there should be no mechanism (such as a key safe) that allows anyone to access the Property; all visits should be by appointment only. The full extent of the known hazards needs to be detailed, in a specially-written Access Agreement that is provided to all Visitors and their Agents as part of the process of securing an appointment. Agents who have such a listing should promptly advise their Broker/Manager and the Broker/Manager should contact Broker Risk Management for assistance in the preparation of an appropriate document that will serve to better protect the Owner and the Agent than the generic PVOH.
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.
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