Nobody buys an investment property expecting someone to get hurt on it. But when it happens – and it does happen – the legal and financial consequences for a commercial landlord can be significant.
Understanding your obligations before something goes wrong is considerably better than trying to understand them after the fact.
The Legal Framework
Commercial landlords in NSW operate under several overlapping obligations that together define what’s expected of them in relation to the safety of their property.
The Work Health and Safety Act 2011 (NSW) impose duties on people who manage or control a workplace. Commercial premises – a retail tenancy, office space, warehouse, or industrial site – are a workplace. As the building owner, you have a duty to ensure, so far as is reasonably practicable, that the workplace is without risks to the health and safety of people who use it. This applies to tenants, their staff, visitors, customers, and contractors.
Common law negligence applies alongside WHS legislation. To establish negligence, a claimant needs to demonstrate that you owed them a duty of care, that you breached that duty, and that the breach caused their injury or loss. For commercial landlords, the duty of care to people lawfully on the premises is well established. The question in any dispute is whether you took reasonable steps to identify and manage risks.
What “Reasonable Steps” Actually Means
The phrase “so far as is reasonably practicable” appears throughout WHS legislation and is central to how duty of care is assessed in building-related injury claims.
Courts and tribunals look at what a reasonable person in your position would have done to identify and manage the risk. This involves considering whether the risk was foreseeable, what the likelihood and severity of potential harm was, and what steps were available to address it.
A documented building inspection program – carried out by a licensed and independent inspector on a regular schedule – is one of the clearest demonstrations that a landlord took their obligations seriously. It creates a written record that the property’s condition was professionally assessed that hazards were identified, and that maintenance was actioned.
The absence of that record doesn’t just leave you legally exposed. It removes your ability to demonstrate what you knew, when you knew it, and what you did about it.
Where Commercial Landlords Get Caught Out
The most common scenario is straightforward: a defect develops, nobody identifies it, and someone gets hurt.
Water ingress through a failing roof or failed waterproofing creates slippery floor surfaces. Deteriorating concrete or paving creates trip hazards. Structural issues in older buildings create risks that aren’t visible from a casual walk-through. Pest damage – particularly termite damage to structural elements – compromises building integrity in ways that aren’t apparent until a failure occurs.
What makes these scenarios legally difficult for landlords is the question of knowledge. If a defect existed and could have been identified through a reasonable inspection program, the landlord’s position is significantly weaker than if the defect arose and was addressed promptly through a documented maintenance process.
The argument “I didn’t know about it” is considerably less persuasive when no professional inspection of the property had been conducted in the preceding three years.
The Lease Doesn’t Protect You Completely
Many commercial landlords assume their lease agreement allocates maintenance responsibility to the tenant and that this limits their exposure.
It doesn’t – at least not completely. Structural maintenance, building fabric, and matters that affect the safety of the premises typically remain with the landlord regardless of what the lease says about tenant maintenance obligations. And even where a lease places specific maintenance obligations on a tenant, a landlord who becomes aware of a hazard and fails to act on it may still carry liability.
Lease terms are relevant to the overall picture, but they don’t substitute for a landlord’s underlying duty of care.
What a Commercial Building Inspection Covers
A commercial pest and building inspection is a professional assessment of the building’s condition – structural elements, roofing, wet areas, pest activity, and any hazards or defects that pose a risk to occupants or visitors.
Our inspectors are licensed builders with construction backgrounds. We use thermal imaging on every inspection as standard, identifying moisture and heat patterns that aren’t visible to the naked eye – water ingress behind walls, active termite workings, plumbing failures within building cavities. Reports are delivered the same day and written in plain English with photographs.
For commercial landlords managing multiple tenancies or properties, we can provide a scheduled inspection program that maintains a consistent maintenance record across the portfolio.
The Straightforward Position
If a tenant, their employee, or a visitor to your commercial property is injured, the questions that will be asked are: What was the condition of the property? When was it last professionally inspected? What defects were identified and what was done about them?
A documented inspection program doesn’t guarantee you won’t face a claim. But it puts you in a fundamentally different position to defend one.
Call our team on 0488 885 203 to book in an inspection or alternatively, Order an Inspection or get An Instant Quote.
