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Patent Dangerous Condition:
Dangerous conditions which are apparent or obvious at the time a piece of property is leased.

Latent Dangerous Condition:
Dangerous conditions which are hidden or not obvious at the time a piece of property is leased.

One who has leased possession of land to another may owe certain duties to the lessee. Further, these duties may be owed not only to the lessee but also to anyone who comes onto the property and to people outside the property as well.

For dangerous conditions existing at the time the lessor transfers the land to the lessee, the lessor owes the same duty to people outside the land that he would have owed had he remained the land occupier. Note that duties owed by the land occupier to people outside the land are, as we covered in the previous chapter, for dangerous artificial conditions or activities and, for landowners in urban areas, for natural conditions as well.

As far as the dangerous conditions existing on the land are concerned, the lessor owes a duty to discover and repair all existing dangerous conditions on the land which he knows of or has reason to know of. Alternatively, he has a duty to at least warn the lessee of these dangerous conditions before transferring the land.

The lessor’s duty to people both on the land and outside the land, continues only until the lessee has had a reasonable opportunity to discover any dangerous conditions and remedy them. However, if the lessor purposely hides a dangerous condition before leasing the land, the lessor’s liability continues until the lessee actually discovers the danger and has had a reasonable time to remedy it. For example:

  1. Rush leases a parcel of land with old buildings on it to Howard. One of the buildings borders a public road. Sean had his truck parked on this road adjoining the building. One week after Howard takes control of the land, the building bordering the public road collapsed and destroyed Sean's truck. Rush will be liable to Sean for negligence since the building is an artificial condition and its dangerous condition existed at the time he leased the land to Howard. Furthermore, since the building collapsed a short time after Howard leased the land, Howard did not have reasonable time to discover the dangerous condition. Therefore, Rush, as the lessor, will be liable.
  2. Howard occupied the land for six months when the building collapsed. In this case, since Howard had reasonable time to discover and remedy the dangerous condition that the building was in, he, and not Rush, would be liable to Sean.
  3. Rush had the property inspected by Michael, a building inspector, before he leased it to Howard. Michael informed Rush that the building adjoining the road is "ready to collapse at any time". Rush, in his eagerness to lease the property, does not inform Howard of this dangerous condition. After six months, the building collapses and destroys Sean's car. In this case, because Rush actually knew of the dangerous condition when he leased the property to Howard, Rush, and not Howard, is liable to Sean for the destruction of his truck. The fact that Howard had time to discover the dangerous condition does not come into play here since Rush’s deception extended his duty until Howard actually discovered the danger.

Any duty owed to the lessee her/himself depends on whether or not, at the time of transfer, the dangerous condition was patent or latent. With patent, or apparent, dangerous conditions, the lessor owes no duty to the lessee. See Kearns v. Smith, 55 Cal.App.2d 532 (1942). As for latent, or hidden, dangers, if they are known to the lessor and involve any risk of harm, the lessor has a duty to either repair, or warn the lessee of, the dangerous conditions. See Smith v. Green, 260 N.E.2d 656 (Mass. 1970). However, this duty is limited to conditions that the lessor is aware of at the time of transfer. The lessor is under no duty to inspect the premises for defects before transferring the land so long as he has no reason to believe that there is a danger. However, if the condition is one that a reasonable person would have been aware of, the court will assume that the lessee had knowledge of the condition.

Further, the lessor owes no duty to the lessee for dangerous conditions that arise after the transfer. The one exception to this rule is where the lessor agrees to repair dangerous conditions that arise after the transfer but makes those repairs negligently.

In such an instance he is liable for any injuries that arise from his negligence. Where the lessor is contractually bound to repair dangerous conditions that arise after transfer, most jurisdictions apply the nonfeasance vs. misfeasance distinction. Therefore, in cases where the lessor refused to make repairs that he was contractually bound to make, the courts consider this nonfeasance which does not give rise to tort liability. However, making the repairs but doing so negligently would be considered misfeasance and would give rise to a cause of action. Today, many jurisdictions allow recovery even in cases of nonfeasance.

In many situations, leased property consists of multiple units like office or apartment buildings. In such instances, the lessor normally retains control of common areas like hallways, lobbies or stairwells. In regard to such common areas, the lessor is regarded as the land occupier and therefore, owes whatever duty of care a land occupier would owe. The lessor owes these duties both to the tenants in the building and to people entering the building as guests or as business visitors of the tenants.

Duties owed by sellers of land are similar to those owed by lessors of land.

The general rule is that, after transfer to the buyer, sellers are not liable for harm suffered by those either on the land or outside of it. However, there are two exceptions to this rule. First, a seller who fails to disclose known dangerous conditions is liable to the people who are harmed by the dangerous conditions including the buyer, the buyer’s family and third persons entering the land with the buyer’s permission. Second, if the property contains an unreasonable risk of harm to persons outside the premises, the seller will remain liable for a reasonable period after the transfer of possession. Generally, the seller’s liability lasts only until the buyer has had a reasonable time to discover and remedy the danger. However, if the seller actively conceals the dangerous condition, his liability continues until the buyer actually discovers the condition and has had a reasonable opportunity to remedy it.

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