Archives for the month of: May, 2018

Premises Liability

Of prime importance to property owners and occupiers (tenants) is liability for damages to persons or property which occur on the owner’s or occupier’s property. Ownership or control of the premises upon which the damages occurred by itself will not create liability for the owner or occupier.  There also must exist a duty from the owner or occupier to the damaged person or property.  Also, control may be established through a showing of actual control or a right to control the area in which the damage occurred.  The control must relate to the activity that caused the injury complained of before a duty will exist.  Areas beyond the limits of an owner’s or occupier’s control will not establish such a duty.

Chapter 95 of the Texas Civil Practices & Remedies Code governs damage claims accruing on or after September 1, 1996, arising from negligent construction activities. A thorough discussion of that Chapter is well beyond the scope of this article.

In addition to control, an owner’s or occupier’s duty to a party will be determined by the legal status of that party. A party may be considered a trespasser, licensee or invitee.  A “trespasser” is someone who has no legal right to be on the property.  A “licensee” is a person who is present on the property with the permission of the owner or occupier, but for whom the owner or occupier has no business relationship.  A licensee is present on the property for his or her benefit only, and not that of the owner or occupier.  On the other hand, an “invitee” has a present business relationship with the owner or occupier and is present on the property for the mutual benefit of both parties.  A licensee or invitee may become a trespasser if his or her occupancy exceeds the scope of the rights granted to them.

Typically, owners and occupiers owe trespassers no duties other than to not injure them willfully, wantonly or through gross negligence. This has been the common law rule in Texas for many years, and has been codified in Section 75.007(b) of the Texas Civil Practices & Remedies Code.  For licensees, owners and occupiers owe the same duties that are owed to trespassers, and the additional duty to use ordinary care to make reasonably safe and adequately warn of dangerous conditions of which the owner or occupier is aware, but the licensee is not.  Actual instead of constructive knowledge of the dangerous condition by the owner or occupier is required.  Owners and occupiers are additionally responsible to invitees for their active negligence.  With respect to agricultural or recreational activities, Chapter 75 of the Texas Civil Practices & Remedies Code provides special protections to land owners engaged in such activities.

Texas courts have divided invitees into 2 categories: “public invitees” and “business visitors”. Public invitees are people who enter premises which are generally open to the public, such as governmental facilities and parks.  A business or merchant impliedly is “inviting” the public into its place of business.  Contractors, employees, and public servants are distinct categories of invitees.  By way of the invitation to the public, all entrants into those premises expect to be in a safe environment.  As such, owners and occupiers owe invitees the duty to exercise ordinary care to keep the premises reasonably safe, including the duty to inspect and discover latent defects, make safe any defects, or warn the invitees of the same.  For invitees, an owner or occupier is charged with any actual or constructive knowledge of the condition of the premises (i.e., conditions that the owner or occupier should have known of regardless of actual knowledge), and has a duty to make sure their invitees are reasonably safe from any such dangerous conditions or adequately warn the invitee of such conditions.

Even where a duty exists on an owner or occupier to provide a safe premises, liability will only occur where the breach of such duty proximately causes damages to the third party. Proximate cause is made up of two separate elements.  The first being “cause in fact”, which means that the negligent act or omission was a substantial reason that the injury occurred and without which, the injury would not have occurred.  The second element is “foreseeability”, which means that an ordinary and reasonably prudent person (which my first year contract law professor described as “Ward Cleaver”—Baby Boomers and Gen-Xers will understand) should have anticipated that such act or omission would result in such damage or injury.  These rules are general in nature, and several special situations have modified versions of these rules.  For example, premises liability relating to children, disabled persons, elevators and escalators, sporting events, and animals, each have modified rules relating to liability to the premises owner or occupier.

Under certain circumstances, an owner or occupier may be responsible for acts of third parties. The same rules as above apply for a third party act as for the owner’s or occupier’s direct negligence.  There must be a duty, a breach of that duty, and such breach proximately caused the injured party’s damages.  Most premises liability situations involving third parties are determined by proximate cause.  However, a third party’s act or omission may be a superseding act, breaking the chain of causation between the premises owner’s or occupier’s conduct.  A “superseding act” is an outside force that intervenes in a chain of events to cause an outcome that otherwise would not have occurred.  A superseding act can relieve an owner or occupier from liability relating to that act.

The criminal act of a third party is a common type of superseding act which may prevent the owner or occupier from becoming liable for an injury occurring on the premises. However, there are situations where an owner or occupier has been held responsible even where the criminal acts of a third party were involved.  In situations where such conduct is foreseeable and unreasonable, courts have imposed liability on the premises owner or occupier.

Employers have a duty to provide a safe workplace for its employees. Owners and occupiers have a duty to follow laws and ordinances which relate to safety of the premises, and the failure to follow such laws and ordinances may be considered to be per-se negligence.  Where an area or place has had so much criminal activity that has resulted in damage or injury to persons in and around such area, a premises owner or occupier may have a duty to protect its invitees against such dangers.  Note, however, that employers typically do not have a duty to warn an employee of conditions that are commonly known or already appreciated by the employee.  Of course, such duties will necessarily be affected by whether Worker’s Compensation insurance exists or not.

The principles underlying premises liability are in most instances purely fact driven. The analysis can be complicated, particularly when there may be more than one cause of the damage or injury or a superseding act.  Owners and occupiers of real property should always take advantage of liability insurance which will cover any negligence found against such owner or occupier, as well as provide the owner or occupier with a defense (attorney) against the prosecution of such claims.

Scott Alagood is board certified in Commercial and Residential Real Estate Law by the Texas Board of Legal Specialization and can be reached at alagood@dentonlaw.com or http://www.dentonlaw.com.

 

The Texas Timeshare Act

Timeshares have been and continue to be a popular method to secure affordable vacation destinations. For timeshare properties located in or offered for sale in Texas, Texas Property Code Chapter 221, also known as the “Texas Timeshare Act” (“Act”), governs and regulates  timeshare interests.  “Timeshare interests” are comprised of “estates”, “properties”, and “uses”.

A “timeshare estate” is any arrangement under which the purchaser receives a right to occupy a timeshare property along with an interest in real property. A “timeshare property” is one or more accommodations and any related amenities that are subject to the same timeshare instrument, and any other property rights that may co-exist.  An “accommodation” includes apartments, condominiums, cooperative units, hotel or motel rooms, cabins, lodges, or other private or commercial dwellings attached to real property.  An “amenity” includes any common areas, recreational facilities, or other common components of timeshare property.  A “timeshare use” is any arrangement which allows the purchaser the right to use timeshare property, but does not grant any other interest in such property.

It must be noted that any timeshare interest located outside of Texas is not subject to the Act’s provisions relating to the creation of the timeshare regime (subchapter B) and the rules relating to a timeshare owners’ association (subchapter I). So long as out-of-state timeshare interests are offered for sale in Texas, then the provisions of the Act relating to registration (subchapter C), disclosures and advertisements (subchapter D), cancellation and rescission rights (subchapter E), exchange programs (subchapter F), escrow deposits (subchapter G), deceptive trade practices (subchapter H), and the transfer or termination of timeshare interests (subchapter J), will apply.

Only timeshare properties in existence on or after August 26, 1985, are subject to the Act. There are also certain types of offerings and dispositions which are exempt from the Act.

If a timeshare property is subject to the Act, a person may not offer or dispose of a timeshare interest unless a timeshare plan is registered with the Texas Real Estate Commission. “Offer” means any advertisement, inducement, solicitation, or encouragement to attempt to cause a  purchase of a timeshare interest.  “Dispose” means a voluntary transfer of any legal or equitable timeshare interest.  Offering or disposing of a timeshare interest which has not been registered is a Class A misdemeanor.  However, it is permissible for a developer to accept a reservation and deposit from a prospective purchaser on an unregistered property and place the deposit in a segregated escrow account with an independent escrow agent, so long as such deposit is fully refundable upon request by the purchaser.

Any advertisement or promotion related to a timeshare interest offering must comply with the Contest and Gift Giveaway Act (Chapter 621 of the Texas Business & Commerce Code). Any advertisement must make it clear that it is soliciting purchasers of timeshare interests and anyone whose name is obtained during a promotion may be solicited, and must set forth the developer’s name and the name and address of any marketing company involved in the promotion, unless affiliated with the developer.  A developer must also provide a timeshare disclosure statement to any prospective purchaser before entering into a purchase agreement.  The required contents of a timeshare disclosure statement can be found in Section 221.032(b) of the Act.

If the timeshare interest includes an exchange program, the party making the offer must also provide an exchange program disclosure statement. The details of the exchange program disclosure statement can be found at Section 221.033(d) of the Act.  An “exchange program” is any method, arrangement, or procedure for the voluntary exchange of timeshare interests between owners.  Typically the company administering an exchange program is not responsible for misrepresentations of the developer or for the denial of any exchange privileges.  So long as the developer’s contracts and sale documents have been approved by the Texas Real Estate Commission or a licensed Texas attorney, the developer may charge a reasonable fee for completing such forms, including the disclosure statements, purchase agreement, and closing documents.

Section 221.043(c) of the Act sets out the requirements for the timeshare purchase contract. The contract must advise the purchaser of his or her right to cancel the contract without penalty.  This right to cancel extends through the 5th day following the purchaser’s execution and receipt of the contract or the purchaser’s receipt of the timeshare disclosure statement, whichever is later.  The cancellation right cannot be waived.

Enforcement of the Act may be accomplished through the filing of an administrative complaint with the Texas Real Estate Commission or by private enforcement through the Courts. Several violations of the Act also constitute violations of the Texas Deceptive Trade Practices – Consumer Protection Act (Texas Business & Commerce Code Section 17.41 et. seq.).  Upon a finding of a material violation of the Act, the Texas Real Estate Commission may suspend or revoke a developer’s registration, place it on probation, issue a reprimand, impose an administrative penalty of up to $10,000.00, or take any other disciplinary action authorized by the Act.

Scott Alagood is Board Certified by the Texas Board of Legal Specialization in both Commercial and Residential Real Estate Law and may be reached at alagood@dentonlaw.com and www.dentonlaw.com.