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Defects in Residential Premises

The owner or occupier of residential premises owes a duty to each entrant whether they are an invitee or a licensee[i].  The duty owed to such entrants is that of reasonable and ordinary care under the circumstances regarding the state of the premises or acts done or omitted on them.

Ordinary care with respect to an owner or occupier of premises means that degree of care which would be used by an owner or occupier of ordinary prudence under the same or similar circumstances[ii].

Under some jurisdictions, there is an ascending degree of duty owed by the possessor of land to persons on the land based on their entrant status, i.e., trespasser, licensee, or invitee[iii].

Under such jurisdictions, a possessor of premises has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe.  In addition, the possessor of a premises must warn an invitee of dangers that the invitee could not reasonably be expected to discover.  The duties owed to an invitee by a possessor of land, however, do not normally extend to a licensee because the licensee must take the property as s/he finds it.

Further, a licensee must prove that the landowner had actual knowledge of the condition and that the licensee had no knowledge of the condition[iv].  An invitee need only show that the landowner knew or should have known of the condition; the invitee’s own knowledge is not an issue.

The proper test to be applied to determine the liability of the possessor of premises is whether in the management of his/her property s/he has acted as a reasonable man in view of the probability of injury to others[v].  This requires persons to maintain land in their possession and control in a reasonably safe condition.

A possessor of premises is subject to liability for physical harm caused to his/her invitees by a condition on the land if s/he[vi]:

  • knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
  • should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
  • fails to exercise reasonable care to protect them against the danger.


However, a possessor of premises is not liable to his/her invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

In Shipp v. Johnson, 452 S.W.2d 828 (Ky. 1969), the court held that the possessor of premises is not liable to a social guest who fell on a waxed hardwood floor when her foot slipped on a corner of a large rug even though there was evidence that prior slipping on the rug corner had occurred within the knowledge of the possessor.

An invitation to enter premises carries with it the duty toward the persons invited to provide reasonably safe means of ingress and egress, and to provide reasonably safe passages to and from such places as are included within the scope of the invitation[vii].

However, in Harrod v. Baggett, 1966 OK 171 (Okla. 1966), the court held that a home owner has no duty to warn an invitee of an obvious danger, such as the unlighted condition of a stairway, because such dangers are readily observable by the invitee.  The fact that an invitee failed to observe an obvious danger, was surprised by it, and was injured, does not broaden the duty of a home owner.

Although common law imposes on landlords only a duty to maintain in a reasonably safe condition those areas of their premises over which they exercise control, statutes may impose on landlords additional duties or obligations[viii].

A landlord is subject to liability for physical harm caused to the tenant and others upon the leased property with the consent of the tenant or his/her subtenant by a dangerous condition existing before or arising after the tenant takes possession, if s/he fails to exercise reasonable care to repair the condition and the existence of the condition is in violation of[ix]:

  • an implied warranty of habitability; or
  • a duty created by statute or administrative regulation.


Further, a landlord has a duty to take reasonable steps to secure common areas of the premises against foreseeable criminal acts of third parties[x].  However, the duty of a landlord to protect a tenant from criminal activity is not a general one but arises only where the landlord’s negligence facilitates the criminal act.

[i] Fearheiley v. Summers, 246 Ill. App. 3d 86 (Ill. App. Ct. 5th Dist. 1993).

[ii] McClure v. Rich, 95 S.W.3d 620 (Tex. App. Dallas 2002).

[iii] Sevigny v. Dibble Hollow Condo. Ass’n, 76 Conn. App. 306 (Conn. App. Ct. 2003).

[iv] McClure v. Rich, 95 S.W.3d 620 (Tex. App. Dallas 2002).

[v] Alcaraz v. Vece, 14 Cal. 4th 1149 (Cal. 1997).

[vi] Fearheiley v. Summers, 246 Ill. App. 3d 86 (Ill. App. Ct. 5th Dist. 1993).

[vii] Harrod v. Baggett, 1966 OK 171 (Okla. 1966).

[viii] Gore v. People’s Sav. Bank, 235 Conn. 360 (Conn. 1995).

[ix] Id.

[x] Rosenbaum v. Security Pacific Corp., 43 Cal. App. 4th 1084 (Cal. App. 2d Dist. 1996).

Inside Defects in Residential Premises