If you see something, say something, and if you say something do something. In the world of real estate, if you gratuitously say you will do something, you may be required to do it in a careful and prudent manner. In Muchnick v. Goihman, 43 Fla.L.Weekly D986 (Fla. 3 DCA May 2, 2018), the real estate agent (Agent”) for the landlord repeatedly told the renters (“Renters”) that he (the Agent) would take care of correcting the mold, water damage, and cosmetic problems in the leased apartment. The Agent was not paid by the Renters for his services to correct the problems and no binding contract existed between the Agent and the Renters for the performance of any services or work. When the Agent failed to take care of the problems, the Renters sued the Agent for damages, in part, alleging the negligent conduct of the Agent.
In reversing the summary judgment in favor of the Agent, the Court held that the evidence supported the claim that the Agent had a duty to exercise reasonable care and could be liable to the Renters for damages if the Agent’s negligence resulted in increased harm to the Renters, or the Renters relied upon the Agent’s gratuitous offer to make the repairs and the Renters were damaged. The Court based its decision on the “undertaker’s doctrine” which provides: “Whenever one who undertakes to provide a service to others, whether one does so gratuitously or by contract, the individual who undertakes to provide the service – i.e., the ‘undertaker’ – thereby assumes a duty to act carefully and to not put others at an undue risk of harm.”
So, even though the Agent was not paid a penny for his time by the Renters for attempting to correct the problems and there was no contract for any services, the Agent may be liable to the Renters as an “undertaker” for his negligence. No doubt the Agent earned a real estate commission for procuring the Renters, and this fact probably explains why the Agent was so willing to “gratuitously” offer to correct the problems – no tenants, no rent, no commission.
