Are you blind to some of the biggest rental property liabilities impacting your bottom line and your tenant’s well-being? The answer unfortunately is almost certainly yes. J.A. and Mark Pankiw-Petty from PPL Accident Recovery Group, a leading personal injury law firm in Vancouver, sit down with Adam & Matt this week to set the record straight through a series of case studies worthy of a Perry Mason reboot. The devil is in the details in these cases – rickety balconies, loose paving stones, ill-advised doobies, and more – and you will want to pay very close attention so that we don’t tackle your disastrous case in a future episode!
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J.A. Pankiw-Petty and Mark Pankiw-Petty are with PPL Accident Recovery Group, a personal injury law firm in Vancouver. They help people who get injured in car accidents or other situations where someone else is at fault. The firm does this by accessing the care people need in order to get better, as well as getting their clients the parts of their lives back that may have been lost. PPL goes after the parties at fault.
The high cost of land in Vancouver means many people are stretching themselves financially, so they might be landlords simply to afford a house of their own. Many post-war bungalows or apartment buildings from pre-1960 to 1990 can mean many risks are associated with old building codes.
On what occupiers’ liability is:
In a broad sense, occupiers’ liability is the care that someone who is an occupier (or has physical possession or control over a piece of property) owes the people coming onto that property. This area of law is about that duty of care: the responsibility you have to make sure your property is safe for use.
A tenant and a landlord can both be occupiers. Fault is very case or context-specific. Many cases have no liability and many cases do.
- Carpenter and railing
A man came to Vancouver Island from Eastern Europe in early adulthood and became a carpenter. He earned a lot of money and was able to buy an apartment complex. One day, a tenant of his from the third floor told him the railing on the balcony was rotting. This was dangerous, but the landlord didn’t do anything about it. The tenant complained again, but still he did nothing. The landlord and tenant did not have a good relationship; however, regardless of his personal feelings towards the tenant, as a landlord he was obligated to ensure they lived in a safe place.
The tenant took it upon himself to fix the railing. He bought supplies and completed the work. The landlord saw this and said it was poorly done. The tenant had a party, which his 6’2”, 250 lb cousin attended. His cousin drank four beers in two hours and went out on the balcony to smoke. He leaned up against the railing and within a minute fell through it and down three storeys. He was severely injured; after the accident, he lost 5 cm in height and 40 lb in weight and was hospitalized for five weeks.
The judge said the defendant landlord knew there was a problem with the railing before the tenancy began. He also knew the tenant requested the repair and that the tenant tried to fix it but did not do so properly. By choosing inaction, the landlord breached the standard duty of care of a reasonable landlord responsible for maintenance. He owes this duty of care to his tenants and their guests.
- Patio in Delta
Some tenants lived in a ground-floor apartment in Delta, BC for four years. Rather than going through the main lobby exit, they used their back patio to come and go. There was no gate, just a 3’ high wall, which they climbed over. On top of the wall were decorative bricks, weighing 15 lbs each.
One day, a tenant came in through the patio and climbed over the wall. She noticed a brick was loose and thought it wasn’t her problem but contacted the maintenance person anyways. After two weeks, nobody checked on it, so she asked again. The maintenance person agreed but never fixed the brick. One day, the tenant had some friends and her sister over. The sister visited regularly but did not like using the patio to enter and exit; however, this time she tried it again. As she was wearing a skirt, she went over the wall one foot at a time. When she brought her second foot over, the loose brick knocked down onto her heel and she got injured.
There was liability on the owner’s part to keep the walls in good repair, but the tenants should not be using the patio to enter and exit the building. After the injury occurred and before the case went to trial, the property manager went around and fixed all of the bricks needing repair. The court said it was 50/50 fault. The property manager knew the tenants and their guests regularly used the patio to come and go. The court said their annual inspection was not enough; there were hazards and potential for injury. The court also said people are responsible for their own safety and shouldn’t be climbing over walls that weren’t designed for it.
Two things need to be proven for compensation in this case:
- Someone else is at fault – the owner was 50% at fault.
- What the harms and losses are (e.g. lost wages, out of pocket expenses, future cost of care, pain and suffering) – the total cost here was reduced by 50%.
- Couple with vacation home
A couple had access to a beautiful waterfront property on an island in the Georgia Strait. They invited their friends over but mentioned it may not be the best time to come as they were doing renovations. The friends didn’t mind and came along anyways. The guests had their own plane and came out to the property with their dog. Once they arrived, they were given the grand tour, during which the couple pointed out the renovations, including a stairwell without a railing.
They used these stairs to go down to the basement and then back upstairs. The two men went out on the deck. The guest took some photos, and they lit up a marijuana cigarette and drink beer. As the guest positioned himself to take another photo, he walked backwards, fell down the stairs without a railing, and hurt himself (the setup was like a hatch in the ground, something like an elevator shaft, with stairs).
The court said the owner had a duty of care to ensure guests were safe. This is elevated because falling down the stairs could cause serious injury or death, and the guests were unfamiliar with the layout of the property. The owner was found 65% at fault, while the guest was 35% at fault because he had been warned there were hazards.
- Mom and son
In rural northern BC, a mom and her son went out to play in the backyard where they had animals. The mom fed the animals while the kid talked to the horse, which ate out of the manger. The mom turned her back to her son, and momentarily he disappeared. She panicked, got the neighbourhood together, and started searching for her son.
The mom rented the home, which was constructed by one of the neighbours. Along with the house, he constructed a well which he expected to last nine or 10 years. The family moved in after this period, which is when the new well was built. The arrangement was informal and done by phone: No lease was ever signed, and the tenant did not know the old well existed.
45 minutes into the search, the neighbour who built the home thought he better go check out the old well. He pulled off the plywood from the top and found the kid, submerged. He was revived 2.5 hours later but suffered severe brain injuries.
The court assumed the child fell down the well. They determined the landlord was at fault as he did not fulfill his duty to ensure the property was safe. He knew or ought to have known about the danger of the old well and should have told the tenant about it.
- Two homes and a dog
A large property had two homes on it. One was on the back of the lot, the other on the front of the lot. The only way to get to the home at the back was to walk through an access road. The landlord rented out the back home and lived in the front home, with his dog. So, the tenant had no choice but to pass by the landlord’s house every day to get to his home at the back. There were no “beware of dog” signs anywhere, but the tenant knew about the dog in advance and met the dog before signing the lease and moving in. When he met the dog, the dog sniffed him but immediately stopped upon the landlord’s command.
On moving day, the tenant came in his car and the dog ran at it and attacked the left tire. However, the landlord commanded him to stop and he did so immediately. The next day, the tenant went over to talk about a plumbing issue, and the dog behaved aggressively. Over the next six weeks, anytime the tenant had people over and they passed the landlord’s house to get to the tenant’s, the dog behaved quite aggressively. Prior to this, no neighbours noticed the dog being aggressive, and the landlords felt their dog was friendly and well behaved.
One day, the tenant and his son left to go fishing. They took the access road past the landlord’s house. The dog was loose at this point. He ran up to the tenants, and the kid pet the dog on the head. Quickly, the dog started to encircle both the tenant and his son. The tenant pushed the dog away with his foot and fell down onto his right knee. As soon as he was on the ground, the dog bit both of his legs and his arm. The landlords came out, pushed the dog off with a broom, and put him inside the house.
This is 100% the fault of the landlords because they knew about the dog’s aggressive behaviour yet didn’t take steps to ensure those on the property were protected. The dog was running loose when the incident occurred, and it could have been chained up or confined to an enclosed space. (Had the owners not been aware of the dog’s aggressive tendencies and if it’s behaviour was a complete surprise, then the outcome may have been different).
On if J.A.’s and Mark’s profession has changed how they see the world:
Not at all. It’s interesting and enjoyable that everyone has a story and an experience. J.A. and Mark like helping people out and figuring out their stories.
You’re dealing with injured people so much, and people don’t often see the repercussions of situations they create. Landlords need to have consistent engagement with their properties and get their properties to a safe point, not only for liability reasons but clearly for the risk of causing lifelong injury or even death.
Yes. Be interested in and care about the properties you own. Think about those who live there or could be visiting. A result of the lawsuits J.A. and Mark deal with is the correction of bad behaviour.
- Favourite neighbourhood in Vancouver.
J.A.: The Granville Island area—it’s very cool, vibrant and human.
Mark: The West End—it’s hard to drive a car and easy to walk around.
- Favourite bar or restaurant.
J.A.: The Wolf and Hound in Kits; it’s reminiscent of a real Irish pub.
Mark: The Narrow—bars should be small and warm like this one.
- West-side mansion or downtown penthouse?
Mark: Downtown penthouse in the West End.
- Where you first bring someone from out of town.
J.A.: Granville Island or Grouse Mountain.
Mark: Stanley Park – it’s got beaches, seawall, and rainforest.
- Something you’ve bought in the past year for under $500 that’s changed your life.
J.A.: An old bike from the 1970s – it’s comfortable.
Mark: A denim jacket for $55 – it changed him!
To find out more about PPL:
Visit www.recoveryppl.com or call 604.359.0909.