In a recent New Jersey Supreme Court case, the Court addressed the issue of whether a realtor who was involved in the rental of a property could be sued for injuries sustained by a tenant in the property as a result of a dangerous condition. Interestingly, the New Jersey Supreme Court Justices were equally divided on the issue which means that the decision of the Appellate Division was affirmed.
The facts of the case, Reyes v. Egner, are rather simple. The owner of the subject property, a vacation home in Stone Harbor, recently had purchased the property for purposes of renting it on short-term vacation property rentals. In this regard, the owner hired the defendant realtor to list the property for such rentals and authorized them to take various actions in performance of this task. These actions included showing the property to potential renters and another included making emergency repairs as needed. In exchange, the realtor received a 12% commission of any rental obtained.
The plaintiff's family rented the subject property for a two-week period after viewing same. Specifically, the plaintiff's daughter entered into the lease and the family commenced their vacation in the home without incident. After nine days, the plaintiff, a seventy-year-old man, opened a sliding glass door leading from his bedroom onto a deck. It was the first time in the nine days that he had opened this door. Because of an improper step down, he was caused to fall and sustain injury as he attempted to enter the deck.
On those facts, the Appellate Division and half of the Supreme Court concluded that the realtor had no liability for the plaintiff's injury. While this appeared to be a departure from the current state of the law, the courts explained that their holding was limited to the facts of the case before it. In a prior case, Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993) the Supreme Court of New Jersey held that a realtor would be responsible where a persons suffered an injury as a result of a defective condition of a property where an open house was taking place. This case has been read and interpreted to mean that a realtor has a duty to inspect for and either correct or warn of dangerous conditions that exist on properties that they are showing to prospective tenants or purchasers.
The Justices on the present court that agreed with the Appellate Division's holding distinguished the facts before it from the Hopkins case by indicating that, unlike the injured parties in the cases that have come down since Hopkins but before the present case, the plaintiff's family was actually in possession of the premises for nine days prior to the incident and would have been in a better position than the realtor to discover and be aware of dangerous conditions such as the one complained of by the plaintiff. The Justices that disagreed with the Appellate Division and would have held the realtor responsible cited to the realtor's duties under the contract with the homeowner and concluded that the realtor was in the best position to know of and either warn or correct the dangerous condition. They felt that the case was analogous to Hopkins.
Our reading of this case leads us to conclude that there has not really been a change in the law concerning realtor liability. We believe that the holding of Hopkins is alive and well and that realtors still have a duty to perform inspections and either warn of or correct dangerous conditions when showing properties to the public. The plaintiff here lost the case on the facts. That is we believe the courts would have concluded differently if the plaintiff were injured on the initial walkthrough of the property as opposed to after having possession for nine days. As it was before, each case must be decided on its specific facts.
