Pre-Happy Independence Day 2014! A San Diego Real Estate Lawsuit has been settled

A San Diego Real Estate Lawsuit has been settled

buyers and sellers real estate disclosuresThis very interesting case is a mixed bag of “he said, she said” accusations and statements. All in all, when selling your home it always pays to DISCLOSE EVERYTHING  of past and present conditions, whether “latent” or “evident” and when buying a home, have thorough inspections while reviewing all paperwork from seller carefully.

In this specific case, the buyer sues the seller and agents for negligence and failure to disclose, withdraws suit to seller and buyer agent and keeps statutory failure to tell seller of defects in home since agent was selling same home for 2nd time after current seller bought home. Agent is awarded sanctions or damages for attorney fees in counter suit against buyer for incorrect lawsuit since the disclosures were provided to buyer by agent.

The following article was provided by California Association of Realtors, Real Legal Department.

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LISTING AGENT’S DUTY TO BUYER AND BUYER’S DUTY OF INVESTIGATION CLARIFIED:

Appellate Court upholds sanctions against the buyer and buyer’s attorney for maintaining baseless complaint against the licensee “utterly lacking in legal merit.”

In a strongly worded unanimous decision, a California Court of Appeal upheld sanctions against a buyer and buyer’s attorney for continuing to prosecute a claim against a listing agent in which “the record supports that no reasonable attorney would have concluded [that the] statutory and common law claims . . . were factual and legally supportable.” Peake versus Underwood filed June 25, 2014, Fourth District, Div. One, D061267.

As with most real estate cases, the underlying claim here was one of nondisclosure. There had been prior drainage, water intrusion and water damage issues with the house. The sellers had purchased the property with the idea of making needed repairs but had run out of money and, after owning the property for about a year, resold the house to Peake. The same agent who had
represented the sellers when they purchased the property represented them in the resale.

The buyer was aware of the house’s prior drainage problems having been provided copies of reports of the previous owner’s steps to address the water issues in two separate drainage upgrades. However, when the buyer’s son’s foot went through a bathroom floor, the buyer filed suit against the seller and the listing agent alleging numerous causes of action, notwithstanding that the buyer admitted that the listing agent had provided her with photographs and reports disclosing subflooring problems. In the long procedural history of this case, the buyer dropped her claims against the seller understanding the seller to be insolvent and stipulated to drop all claims against the listing agent except statutory claims (Civil Code sections 2079 and 1102 et seq.).

During this time, the listing agent’s attorney encouraged the buyer’s attorney to dismiss the case, reminded him that the listing agent had provided all information in the listing agent’s possession, and repeatedly informed him that the defendant would seek sanctions if the case were not dismissed. The case was not dismissed and the trial court awarded sanctions finding that the buyer’s claims were “utterly lacking in legal merit.”

The appellate court affirmed both the listing agent’s duties to the buyer as well as the buyer’s duty to investigate for themselves by focusing on three things: the Real Estate Transfer Disclosure Statement (“TDS”) is a seller disclosure document; a listing agent’s inspection duty under Civil Code sections 2079 and 1102 et seq. is to, in good faith, conduct a visual inspection of accessible areas; and a listing agent has no duty to disclose latent defects to a buyer unless the agent also knows that such facts are not known to or within the reach of the diligent attention and observations of the buyer.

The buyer alleged that since the listing agent had signed the last page of the TDS, the listing agent was responsible for the sellers’ answers on the first two pages of the TDS. The sellers had
answered “no” to the question asking if they were aware of any flooding, drainage or grading problems. Buyer claimed that when the listing agent signed the last page of the TDS he knew the sellers were wrong. Although the buyer in answering the motion for sanctions conceded that this claim was in error, the court reports the underlying facts and provides a clear statement for the record that such claim was indeed in error. The TDS, where the seller signs, clearly states “these representations . . . are representations made by the seller(s) and are not representation s of the agent(s), if any.”

In this case, the record is clear that the buyer was on notice of the prior problems with the house. The court found that, not only were the facts within the diligent attention of the buyer, they were actually known to her.

Although sanctions can be difficult to get, listing agents can take some comfort that, when they fully disclose and document facts, there may be a remedy for claims that are not dismissed once plaintiff’s counsel is aware of the full facts. Using the C.A.R. Agent Visual Inspection Disclosure to record a diligent visual inspection and providing all information that the listing agent has in their possession offer protection from nondisclosure claims. Buyer’s agents may also want to remind buyers that they have a duty to protect themselves and do their own due diligence as to any disclosure provided to them.

John A Silva
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John A Silva

John Silva has over 21 years experience in residential real estate. He is a San Diego native, specializing in helping sellers & buyers, with extra experience in: modifications, short sales, and negotiation.
Contact me today for real estate assistance! (619) 890-3648 | Email me
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