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On 19 September 2012, Coroner Hennessy handed down her findings
on the inquest into the death of Isabella Diefenbach.
The Coroner's findings provide important reminders about
property managers' duties to landlords and tenants and also
indicate potential legal reforms on the nature and extent of these
duties.
Background
Mr and Mrs Diefenbach rented a house in Yeppoon, Queensland.
Termite damage on the verandah had caused wood rot.
Mr and Mrs Diefenbach complained to the property manager many
times about the condition of the veranda. The veranda was also
inspected by an independent tradesperson on three occasions. The
independent tradesperson provided two written reports that
identified the presence of wood rot on the veranda. The property
manager received these reports but did not read them, instead
forwarding them to the landlord.
On 29 May 2010, Mr Diefenbach, holding his seven week old
daughter Isabella in his arms, stepped on to the veranda and his
leg fell through a part affected by wood rot. Isabella was thrown
from his arms and on to the steps below. Isabella died from head
injuries.
The Coroner's decision
The Coroner made a number of recommendations that, if
implemented, would impact on property managers' duties to
both tenants and landlords:
First, the Coroner recommended the amendment of the current
property management training program to incorporate training on how
to conduct a satisfactory inspection of decks, verandas, and
stairs. In particular, this training should include how to identify
wood rot and termite activity and how this may impact the
structural integrity of verandas and stairs.
Any residential property with a deck, veranda or balcony more
than 10 years old should be inspected by an independent licensed
builder before being rented. In addition, these inspections should
be carried out every three years.
The Coroner commented that in this case the property
managers' records were incomplete and therefore it was not
possible to determine when the tenants had made a complaint and
whether this complaint was acted upon. Accordingly, the Coroner
recommended the amendment of existing legislation to require
property managers to maintain a register of all complaints and
maintenance requests lodged by tenants and landlords'
instructions in respect to them.
Existing legislation should be amended to address property
managers' responsibilities in relation to building, pest or
termite inspection reports they receive. She suggested that
property managers should read these reports, brief the landlord on
the report's recommendations and request instructions from
the landlord regarding any necessary repairs.
Lessons for real estate agents and their insurers
The coronial inquest into the death of Isabella Diefenbach
highlights the importance of property managers maintaining proper
written records of all complaints and maintenance requests.
Insurers should make sure that property managers have proper
systems and procedures in place to keep these records in order to
prevent claims and to provide proper evidence of complaints should
proceedings such as a coronial inquest or civil litigation
eventuate.
The Coroner's recommendations (if implemented) will
place property managers' duties to landlords and tenants at
a higher threshold than the current position at common law.
Presently, a property manager only becomes liable in negligence if
a defect to the property is readily observable to a layperson or
the tenant notifies the real estate agent of the defect. Courts do
not expect property managers to have knowledge held by a person
with building, engineering or trade qualifications.
However the Coroner, by recommending that property managers be
trained in how to identify wood rot and termite damage and read and
comment on reports undertaken by independent licensed builders,
indicated that a higher duty should be expected of property
managers. These recommendations indicate that property managers may
be required to have greater knowledge about identifying and
remedying defects than a typical 'lay' person.
While these recommendations for legal reform have not yet been
considered by the Queensland parliament, as a matter of best
practice insurers should ensure that:
wood rot on verandas and stairs are part of property
managers' inspection procedures
property managers read any building or inspections reports they
receive and seek instructions from the landlord regarding any
necessary repairs.
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and 2011
Winner - Australasian Law Awards Gold Employer of Choice 2011
Finalist - ALB Australasian Law Awards 2008, 2010 and 2011 (Best
Brisbane Firm)
Winner - BRW Client Choice Awards 2009 and 2010 - Best Australian
Law Firm (revenue less than $50m)
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