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Courtside Real Estate: Risk Management: 19 Tips to Avoid Agent Liability


BY: JOHN V. GIARDINELLI, ATTORNEY AT LAW | OF COUNSEL

Identifying Negligence

As one can imagine, the Firm gets lots of calls relating to agent “liability.” Today we discuss the tort of negligence as it applies to real estate agents. This topic is a full semester in law school, so we are just going to hit some highlights.
There are four elements that must be proven in order to find negligence. They are: duty, breach, causation, and damages. There must be a legal duty or obligation the agent has to their client, the parties, or the public. The agent must then act in a manner that falls below the standard of care. This act, or failure to act, must be a substantial cause of monetary harm or damage – a financial issue.


Duties are imposed by statute, regulation, ethical obligations, case law, and common practice. For example, doing a reasonably competent diligent visual inspection of accessible areas of a residential property (1-4) and disclosing what is discovered in writing is a duty imposed by Statute in California Civil Code, Section 2079(a). Doing a poor job below the standards set by common practice in the area or improperly filling out an AVID form most agents use can create

“liability” which is defined as the “state of being responsible for something.”

Since there are so many possible duties, and so many opinions on what creates this “liability,” it is important to understand there are risks inherent with the job of a real estate agent but there are methods to manage the risk. If an agent acts in a manner that ignores the client’s best interest in order to promote their own profit, odds are there will be little that can be done to protect that agent. Failing to cooperate with other agents, failing to advise the Seller of offers, or failing to disclose known or discovered defects are ways to potentially create serious liability.

The following are some tips to avoid some of the pitfalls in discharging duties. It is one man’s opinion, not complete by any means, and is merely meant to highlight some areas where you can help yourself.

19 Tips to Avoid Liability

  • Review both the NAR Code of Ethics (a basis for California Law) and the MLS Rules;
  • Disclose actual knowledge of any material fact to the parties;
  • Disclose all material information to your own client;
  • Review the Preliminary Title Policy with your client and point out potential issues, but do not cross over the line and interpret facts or legal issues. Just disclose what you see, you are not lawyers, engineers, or surveyors;
  • What groups, such as governmental agencies, HOA’s, or utility companies have control over the property?
  • Are there public services nearby, such as airports, military installations, or train stations, that impact the property;
  • Choose your words carefully, especially in marketing. Be careful in how you describe the property;
  • Your visual inspection includes your eyes (what you see), your ears (what you hear), and your nose (what you smell);
  • Keep emotions and unreasonable expectations to a minimum;
  • Professionally document conversations, choose words carefully;
  • Stay away from adjectives, such as water stain or settlement crack. These interpretations as to the cause of what you see are for the experts;
  • Provide sources of information you convey, especially to your clients (eg. The inspector told me…). Do so in writing;
  • Stay away from numbers such as “there are six cracks.” There could be more you don’t see;
  • Avoid comments such as “except as noted the house looks in good shape.” The AVID is not a sales tool;
  • Document lack of cooperation by parties or other agents;
  • Do NOT give opinions as to who is entitled to the deposit or if someone has a right to cancel. These are legal issues;
  • Give your clients adequate time to review everything;
  • Understand Fair Housing issues;
  • Save correspondence, including texts.

There are hundreds of tips. These are just a few. Above all SLOW DOWN. Give yourself time to think, act, and communicate. Give your clients time to digest the information and ask questions.

C.A.R.’s Jordan Le Vine on Market Data for Local Associations



At a time when member engagement is made difficult by the pandemic, and the real estate markets throughout California are incredibly hot, you need market information to push out to your members. Jordan Levine, C.A.R. Vice President and Chief Economist, brings customizable, shareable, and interactive online market data to local associations. Jordan takes you through car.org and highlights the tools that C.A.R. provides so that you can customize them and share them with your members and community. As a bonus, he gives a brief Market Update and also touches on some of the concepts that are currently in development so you have inside knowledge about future tools and reports. Great information for AEs, Communication Directors, and Social Media staff!

Courtside Newsletter: Non-Contingent Offers


BY: JOHN V. GIARDINELLI, ATTORNEY AT LAW | OF COUNSEL

In this market, many buyers find themselves in bidding wars with other potential buyers. In order to sweeten offers, in the multiple-offer situations, many buyers are waiving all or most of the contingencies set forth in the standard C.A.R. Residential Purchase Agreement (RPA). While this practice is perfectly legal, there are a number of potential concerns to be aware of.

“What is a contingency?”

Simply defined, a contingency is a condition precedent to a buyer’s duty to fully perform. Assuming the buyer acts in good faith, a buyer will have the time allotted in the RPA (generally 17 days) to either satisfy and remove the contingency or cancel the Contract. (It should be noted that the RPA provides that the time to resolve those contingencies could be extended if the seller does not demand their removal by providing a Notice to Buyer to Perform) Simply stated, the buyer does not default, and contingencies remain to protect the deposit.

“Why is this important?”

Generally, the buyer will deposit a certain amount to assure performance (usually up to 3% of the purchase price) and agrees that if they fail to perform and default the seller gets to keep the deposit as “Liquidated Damages.” If the contingencies are removed, or are waived in the first place, the seller is entitled to the deposit under most circumstances where

the buyer cannot close on time. (It should also be noted that for every rule there are exceptions. DO NOT practice law by giving your opinions as to the seller’s rights to the deposit. There are too many legal issues. Let the lawyers interpret!)

Types of contingencies.

While the RPA provides for as many as nine (9) preparation contingencies, there are three (3) that may be critical: The Loan Contingency, The Appraisal Contingency, and The Inspection Contingency. Each contingency deserves its own Courtside Real Estate newsletter. However, by waiving these contingencies, the buyers could lose their deposit if the Liquidated Damages clause is part of the RPA and they cannot perform.

Risk Management Tips

  • Make sure the buyer understands the risk of losing their deposit if they cannot perform and the reasons the contingencies they are waiving exist.
  • If they are waiving the appraisal contingency in the fluctuating market, they may still cancel but will most likely lose their deposit.
  • Get as much done as you can before the term period for cancelling provided by a Transfer Disclosure Statement expires. That “Right of Recission” is statutory and cannot be waived.
  • Make sure you carefully document your files and, whenever possible, get the buyers acknowledgement. Write professionally.
  • If you are the listing agent, do not guaranty the seller’s right to the deposit. Things can always go wrong.

Next Month: An analysis of new and revised C.A.R. forms due in June.

What is the Clear Cooperation Policy?


The Clear Cooperation Policy is a NAR-mandated policy that governs the public marketing of listings and their entry into the multiple listing service. Within one (1) business day of marketing a property to the public, the listing broker must submit the listing to the MLS for cooperation with other MLS participants.

Stay up to date with Clear Cooperation Policy updates at https://go.crmls.org/clear-cooperation-policy/

ADDITIONAL LISTING MEASURES

• Days Not Active (DNA): The days in any status other than Active, Active Under Contract or Pending.

• Days on Market (DOM): The days Active or Active Under Contract without that deal closing.

• Days in Pending (DIP): The days in Pending or Active Under Contract not in DOM.

• Days Listed (DL): List Contract Date until List Finalization. No days removed for any status or condition. DL = DNA + DOM + DIP

RULE 9.3 – SHOWINGS 9.3 Availability to Show or Inspect. Listing Brokers shall not misrepresent the availability of access to show or inspect a listed property. For any property in which Listing Broker selected a status of Coming Soon or Hold, Listing Broker represents that the property shall have no showings or tours, by Listing Broker or otherwise, until such a time as the Property is placed in the Active or Active Under Contract status.

Rule 10.1 – COMING SOON A valid listing contract exists, and no offer has been accepted. The Listing Broker is in possession of a seller signed instruction to submit the listing as “Coming Soon”. Marketing and Advertising as defined in Rule 7.9 is permitted and shall include language that property is “Coming Soon” and shall include the date for which property will become Active. The property is not available for showings consistent with Rule 9.3

COMING SOON IN MATRIX The Status tab has been updated to include Coming Soon as an option. The new field, Start Showing Date, under the Office/MLS tab will appear if Coming Soon is chosen. The date must be within 21 days of the listing input date. COMING SOON FORM The Coming Soon form is also available for download at: crmls.org/clear-cooperation-policy

 Rule 10.1 – HOLD (H): The Listing Broker is in possession of a seller written instruction to submit the listing as “Hold”. Marketing and Advertising as defined in Rule 7.9 is permitted. The property is not available for showings consistent with Rule 9.3.  

CITATION POLICY Citation Fine for violation of 7.8, 7.9, 7.9.1, 9.3 is in the amount of: 1% of the list price or $500 whichever is greater not to exceed the amount of $2,500. Each Violation will receive a WARNING and opportunity to correct before any fine is issued.

To learn more about the Clear Cooperation Policy, please visit https://go.crmls.org/clear-cooperation-policy/

Possible Alternatives or Options to Foreclosure


California Department of Real Estate
1651 Exposition Boulevard
Sacramento, CA 95815
www.dre.ca.gov

Consumer Alert

Regardless of your particular situation, if you are unable to meet your monthly mortgage loan payments, you face the probability of foreclosure. When you purchased or refinanced your home, you borrowed money from a lender. The lender is entitled to repayment according to the financial terms described in your mortgage loan documents. If you miss your mortgage loan payments, your lender can cause your home to be sold to pay off your mortgage loan. This procedure is called foreclosure.

While going through foreclosure is an overwhelming experience, the last thing you should do is nothing. You may pursue a number of possible alternatives to foreclosure and should take the initiative to do so. Because not all alternatives or options are appropriate, you need to decide which solution might be best for you in your particular circumstances. Consulting an attorney early in the foreclosure process can help you decide which option is best for you and protect your rights as a homeowner. Possible alternatives or options include:

  • Loan modification;
  • Refinance: pay off your loan with a new loan on better terms;
  • Sell your home;
  • Pursue a “Short Sale”;
  • Rent out your entire home;
  • Rent out rooms;
  • Offer a “Deed-in-Lieu” of foreclosure to your lender or its servicing agent; or,
  • Home equity sale.

This article addresses a home equity sale, one of the potential alternatives to foreclosure.

A home equity sale is an alternative to foreclosure and only available for homeowners who still have equity in their home, meaning that the value of the home exceeds the indebtedness owed to the lender or lenders. California Law contains protections for residential real property in foreclosure. In order for the protections to apply, the property must be one to four dwelling units, the owner must occupy one of the units as his/her primary residence, and the property must be subject to an active Notice of Default.

Home Equity Purchasers are persons who acquire homes in foreclosure as an investment and not for occupying. Purchase and sale transactions between a Home Equity Purchaser and a homeowner whose home is subject to an active Notice of Default are subject to specific provisions of California law. Requirements of this law include standards for the contents of the contract between the Home Equity Purchaser and the homeowner. The contract must contain the entire agreement of the parties and must include, among other information, the following:

  • The name, business address, and the telephone number of the Home Equity Purchaser;
  • The address of the home in foreclosure (subject to an active Notice of Default or Trustee Sale);
  • The total consideration purchase price to be paid by the Home Equity Purchaser in connection with or incident to the sale;
  • A complete description of the terms of how the Home Equity Purchaser will pay for your home, other consideration including, but not limited to, any services of any nature which the Home Equity Purchaser represents he or she will perform for you before or after the foreclosure sale;
  • The time in which possession is to be transferred to the Home Equity Purchaser;
  • The terms of any rental agreement;
  • Proper notice of your right to cancel with an equity purchaser. The right to cancel expires at midnight of the fifth business day following the day on which you signed a contract or 8 a.m. on the day scheduled for the sale of the property pursuant to a power of sale conferred in a deed of trust, whichever occurs first. The required format for the notice can be found in Sections 1695.3 and 1695.5 of the California Civil Code.

The homeowner is entitled to a right of cancellation, and the purchase and sale transaction cannot be concluded, nor can the Home Equity Purchaser (or you at the request of the Home Equity Purchaser) refinance or borrow money from the equity in the home until the cancellation period has expired. Further, you will not receive any consideration (money) for your equity until the cancellation period expires. If you elect to cancel, the original contract and any other document (instrument) you may have signed must be returned to you without any condition being imposed by the Home Equity Purchaser.

Home Equity Purchasers are prohibited from making untrue or misleading statements regarding the market value of your home, the amount of net proceeds you may receive (if any) after the sale, about any contractual term, or the nature of any document (instrument) you sign. You should be aware that it is unlawful for any person to initiate, enter into, negotiate, or complete any purchase or sale transaction involving your home in foreclosure, if such person, by the terms of the transaction, takes unconscionable advantage of you.

As part of the proposed purchase and sales transaction, some Home Equity Purchasers will offer you the opportunity to repurchase your home at some future date. The Home Equity Purchaser will demand that you transfer title to the property to another buyer and that you may stay at your home and at some future time exercise an option to repurchase. Such purchase and sales transaction is presumed to result in a mortgage loan rather than a sale
of the home, unless the Home Equity Purchaser can prove otherwise.

Applicable California law is intended to protect you (the homeowner) from unethical and unscrupulous Home Equity Purchasers who are acquiring your home when it is in foreclosure. Even if your home is not subject foreclosure, you may need protection when considering a purchase and sales transaction with an investor seeking to purchase your equity. As you can see from this brief discussion, the law is complex and you would benefit from the advice of an attorney who is knowledgeable regarding real estate transactions.

Selling Your Equity – Quick Tips

  • Hiring a real estate broker may be helpful, but is not required. A licensed real estate broker will solicit for buyers (purchasers), help you negotiate contract terms, and will assist with the closing process.
  • Not knowing the fair market value of your home could expose you to unethical business practices. A knowledgeable real estate broker (active in your neighborhood and community) or an independent appraiser can assist you in estimating the current fair market value of your home.
  • Avoid private transactions where a request/demand is made by the buyer/purchaser for you to sign papers in exchange for a cash payment (particularly without the use of a separate, third-party escrow holder). In California, licensed public escrows, title insurance companies, underwritten title companies, among others who either are licensed or expressly exempt from licensing as an escrow holder, are authorized to perform escrow services. These services include paying off your existing lender as part of the purchase and sales transaction.
  • Unethical persons often attempt to persuade homeowners to complete informal transactions that provide “instant cash” or will offer to buy the homeowner’s equity using what the buyer/purchaser describes as a “contract of sale”. This type of transaction could ultimately result in financial grief. Obtaining advice from an attorney is highly recommended before entering into a “contract of sale” (a contract where title remains in your name and the deed is delivered at some later date to the buyer/purchaser).
  • It may take a significant amount of time to find a buyer for your home. Begin the marketing of your home as early as possible. You should keep your monthly mortgage loan payments current during this period.
  • As long as this transaction involves a complete payoff to your lender or its servicing agent of your mortgage loan, it is not a “short sale.” The prior permission of the lender or its servicing agent is not necessary. However, there may be a prepayment penalty as part of the terms of your mortgage loan, charging you an extra fee if you pay off your mortgage loan early. You should negotiate with your lender or its servicing agent to waive this fee. Some prepayment penalties are contrary to applicable law, and a real estate attorney can assist you in this situation.

For additional resources about alternatives to foreclosure, please visit the Department of Real Estate’s consumer publications page at https://dre.ca.gov/Publications/.

Issue Date: October 2020