Real Estate Attorneys Don’t Lose Cases, Their Clients Do
In California, buried within Civil Code 2079 is a clause that states that a
Buyer has “the duty to protect himself or herself.” It goes on to state
“including those facts which are known to or within the diligent attention
and observation of the Buyer or prospective Buyer.” Well that’s funny;
then why do Buyers file 80-90% of claims? Is it because the licensees
involved often provided fewer than adequate disclosures, avoided
inspections and/or limit investigation periods? Absolutely! Why else
would the lion’s share of those Buyer-generated legal disputes be
referred to as “Bad House Cases?”
Amazing when one reads the qualifying language within the Field’s
Case regarding a licensee’s duty:
“The facts that a broker must learn, and the advise and counsel
required of the broker, depends on the facts of each transaction,
the knowledge and experience of the principle, the questions asked
by the principle, the nature of the property and the terms of the sale”
But, What About The Seller?
So where is the disconnect? Real Estate Attorney Ron Rossi often speaks
of a licensee’s duty to counsel, explain and advise.
Real Estate Attorney David Hamerslough believes licensees should
constantly be engaged in “issue spotting.”
Does that always happen? No. All to often, licensees on both sides of the
transaction are unable or unwilling to fulfill these duties, leaving the seller
exposed to a host of expensive ramifications and consequences.
Can the Seller help Protect “himself or herself” while Simultaneously
Ensuring a Smoother Selling Process, while Reducing the Risk of
Subsequent Litigation? All Day Long.
Sellers should over-disclose and provide prelisting inspections to prospective
Buyers and their licensees. Granted, providing Buyers knowledge of the
property prior to writing an offer is still taboo in many markets. (These
sellers and licensees are opting to surprise the Buyer they finally landed
with the real condition of the property and neighborhood). In
the late ’80’s, licensees on the San Francisco Peninsula began providing
“Listing Packages” to prospective Buyers and their representatives, with
great results; stronger offers in less time, fewer sales falling apart, fewer
re-negotiations and all while reducing the likelihood of litigious buyers.
Any Seller who has a licensee repeating the old lines “Buyer pays for
inspections,” and/or “we don’t care what the Buyer does,” has a fool
at the wheel. In fact, Sellers should always put procedures in place to
offset the lousy standard-of-care it’s safe to deduce that the the Buyer is
receiving. And yes, what is happening, or not, on the other side
of the transaction is the Seller’s business, don’t let anyone tell you otherwise.
A Seller should insist that the Buyer has ample time for inspections and
contingency periods. That alone can eliminate a Bad House Case.
Knowingly, or, Unknowingly, Bypassing the Best man or woman
for the Job
This is one of the few professions where a consumer will Not hire
the best person for the job, but instead feel compelled to hire a relative of
a friend or a friend of a relative. Worse yet, many will employ the
“friendly neighborhood specialist,” for all the wrong reasons. These
licensees listened to their trainers, and are concentrating their efforts
in a designated area so they will be perceived as the expert of that
neighborhood. Expert of what? Which model also has a fireplace in the
family room? Or, What home sold for how much? Heck, the mailman
can tell you that!
What a sham. Sellers need the sharpest tool in the shed, not the
dullest. Buyers and their licensees come from all areas. They
know of other real estate options, not just the neighborhood cocoon
that a “neighborhood specialist” prefers to stay within. The complacency
of these “specialists” often plays out, (screams out), in such crucial areas
as selling, marketing, negotiations and the litigious arena of the
paperwork. You guessed it, when those duties to the Sellers
are substandard, it can be in the best interest of the Buyer.
Beware of the Licensee Who Plans to Turn Your Entryway Into a
Their Promotional Kiosk
These licensees have literally been trained to set up tripods
with blown-up neighborhood maps, color coding the sales in the
area, in order to gain new buyer and seller clients. Yet, they
convince the seller that all this extra work is for them, the Seller!
Setting up multiple trip hazards in your Seller’s home and
then deceiving them about its purpose, is flat-out immoral.
Outrageous, when you think about it; they were hired to
protect their Sellers, not bamboozle ‘em!
Beware of the Architect’s Folly ~ Decorative Wood Trim
Hanging planter boxes, unnecessary balconies, cantilevering
beams, attached trellises, etc, all have one thing in common
~ they rot.
Year after year, sale after sale, dry-rot and/or termite
damage goes unchecked or worse, ignored.
This expensive “gotcha” often plays out in the middle of a sale,
through the efforts of the Buyer’s inspectors.
Now the sale is in jeopardy, some Buyers will walk, even if the Seller will pay
for the repairs.
Never give a Buyer a reason to be nervous, they can do that on their
own.
“> Pat Kapowich,
“Negotiating Smooth Transactions Throughout The South Bay”
SiliconValleyBroker.com
Part 1