Landmark State Decision in RE Agency and Disclosure Law

[bearishgurl]

pablo, I’ve sat in and assisted on several trials in my day (yes, RE related). And I don’t “draft and make copies,” I “draft, finalize and they SIGN” (with little to no changes) for ALL levels of court in this state.

You have NO IDEA whether Summer was the “procuring agent” (read: buyer’s agent) in this purchase. The opinion is not crystal CLEAR on this. It states Summer showed the property to the Plaintiffs here. Why would she NOT write the offer? WHERE is the plaintiff’s agent in this case, pablo? Didn’t (s)he have any culpability here?

Summer likely did not have a Buyer-Broker Agency Agreement or any separate “Agency Agreement” with the Holmses because they called her to see her listing and she showed it to them and then wrote up the offer listing her brokerage as both the listing and selling broker in the transaction. Thus, the court (and plaintiff/appellant, in their brief) HAD to deal with “six-factor privity analysis” (and the corresponding case law) in order to reach their decision.

see: http://rogerbernhardt.com/November_2010.html

3. When It Is the Seller’s Broker Who Did Not Inform the Buyers

This would have been a considerably easier case had the defendant—who was apparently the only broker in the picture—designated herself as a dual agent rather than solely agent for the sellers. That way, she would have had fiduciary duties to the buyers and made it much easier to impose disclosure duties on her. Instead, her status made the court of appeal feel compelled to go through the classic six-factor privity analysis before imposing such duties on her.

I’m not the only one who believes that Summer was the “selling agent.”

See: http://www.sierrasun.com/article/20101014/NEWS/101019949

…Selling agent Summer told the court the loans were a matter of record and could be seen on the preliminary title report; however, by the time the Holmeses received the title report, they had already sold their home. I assume “sold” means they went into escrow, unless it was the fastest sale in history…

pablo, did it ever occur to you that Summer may not have been aware of the over-encumbrances herself until after escrow was opened in this case? Stranger things have happened.

And since you’re so good at “changing light bulbs,” why don’t you put a new one in your flashlight ;=!

[bearishgurl]

[quote=pabloesqobar (in re: court’s arrival of their decision in Holmes)]…They explicitly state that they are NOT converting the duties owed between the agent and seller to that of the 3rd party buyer. Rather, they acknowledge a lower standard of utmost care, integrity, honesty, and loyalty. A much different standard than that of a fiduciary…[/quote]

Piggs, this is ALL the more reason NOT to use a seller’s agent to write your offer to purchase, ESPECIALLY if you do not have an Agency Agreement with them.

[bearishgurl]

[quote=pabloesqobar (in re: court’s arrival of their decision in Holmes)]…They explicitly state that they are NOT converting the duties owed between the agent and seller to that of the 3rd party buyer. Rather, they acknowledge a lower standard of utmost care, integrity, honesty, and loyalty. A much different standard than that of a fiduciary…[/quote]

Piggs, this is ALL the more reason NOT to use a seller’s agent to write your offer to purchase, ESPECIALLY if you do not have an Agency Agreement with them.

[bearishgurl]

[quote=pabloesqobar (in re: court’s arrival of their decision in Holmes)]…They explicitly state that they are NOT converting the duties owed between the agent and seller to that of the 3rd party buyer. Rather, they acknowledge a lower standard of utmost care, integrity, honesty, and loyalty. A much different standard than that of a fiduciary…[/quote]

Piggs, this is ALL the more reason NOT to use a seller’s agent to write your offer to purchase, ESPECIALLY if you do not have an Agency Agreement with them.

[bearishgurl]

[quote=pabloesqobar (in re: court’s arrival of their decision in Holmes)]…They explicitly state that they are NOT converting the duties owed between the agent and seller to that of the 3rd party buyer. Rather, they acknowledge a lower standard of utmost care, integrity, honesty, and loyalty. A much different standard than that of a fiduciary…[/quote]

Piggs, this is ALL the more reason NOT to use a seller’s agent to write your offer to purchase, ESPECIALLY if you do not have an Agency Agreement with them.

[bearishgurl]

[quote=pabloesqobar (in re: court’s arrival of their decision in Holmes)]…They explicitly state that they are NOT converting the duties owed between the agent and seller to that of the 3rd party buyer. Rather, they acknowledge a lower standard of utmost care, integrity, honesty, and loyalty. A much different standard than that of a fiduciary…[/quote]

Piggs, this is ALL the more reason NOT to use a seller’s agent to write your offer to purchase, ESPECIALLY if you do not have an Agency Agreement with them.

[urbanrealtor]

Funny thing.
When this thread re-appeared a couple of days ago, I looked up the name of the CAR atty who filed to un-publish this case.
I emailed asking why he took that course of action.

So he just called me.

We chatted for about 10 minutes.
His position was basically that the broadness of the language in the decision undercut confidentiality requirements for listing agents.
In other words, he felt that the broadly defined requirement of disclosure prior to offer meant that future courts could find that there was no expectation of confidentiality for sellers about material fact (again, prior to the initial offer).

I disagree with his position but he has a point.
Listing agents are currently held to rigorous confidentiality requirements prior to offer, and rigorous disclosure after the acceptance of that offer.

Incidentally, he felt that the decision for the plaintiff was fair and correct (or that is what I understood)even though he found the opinion’s broadness unhelpful.

Just thought I would mention.

[urbanrealtor]

Funny thing.
When this thread re-appeared a couple of days ago, I looked up the name of the CAR atty who filed to un-publish this case.
I emailed asking why he took that course of action.

So he just called me.

We chatted for about 10 minutes.
His position was basically that the broadness of the language in the decision undercut confidentiality requirements for listing agents.
In other words, he felt that the broadly defined requirement of disclosure prior to offer meant that future courts could find that there was no expectation of confidentiality for sellers about material fact (again, prior to the initial offer).

I disagree with his position but he has a point.
Listing agents are currently held to rigorous confidentiality requirements prior to offer, and rigorous disclosure after the acceptance of that offer.

Incidentally, he felt that the decision for the plaintiff was fair and correct (or that is what I understood)even though he found the opinion’s broadness unhelpful.

Just thought I would mention.

[urbanrealtor]

Funny thing.
When this thread re-appeared a couple of days ago, I looked up the name of the CAR atty who filed to un-publish this case.
I emailed asking why he took that course of action.

So he just called me.

We chatted for about 10 minutes.
His position was basically that the broadness of the language in the decision undercut confidentiality requirements for listing agents.
In other words, he felt that the broadly defined requirement of disclosure prior to offer meant that future courts could find that there was no expectation of confidentiality for sellers about material fact (again, prior to the initial offer).

I disagree with his position but he has a point.
Listing agents are currently held to rigorous confidentiality requirements prior to offer, and rigorous disclosure after the acceptance of that offer.

Incidentally, he felt that the decision for the plaintiff was fair and correct (or that is what I understood)even though he found the opinion’s broadness unhelpful.

Just thought I would mention.

[urbanrealtor]

Funny thing.
When this thread re-appeared a couple of days ago, I looked up the name of the CAR atty who filed to un-publish this case.
I emailed asking why he took that course of action.

So he just called me.

We chatted for about 10 minutes.
His position was basically that the broadness of the language in the decision undercut confidentiality requirements for listing agents.
In other words, he felt that the broadly defined requirement of disclosure prior to offer meant that future courts could find that there was no expectation of confidentiality for sellers about material fact (again, prior to the initial offer).

I disagree with his position but he has a point.
Listing agents are currently held to rigorous confidentiality requirements prior to offer, and rigorous disclosure after the acceptance of that offer.

Incidentally, he felt that the decision for the plaintiff was fair and correct (or that is what I understood)even though he found the opinion’s broadness unhelpful.

Just thought I would mention.

[urbanrealtor]

Funny thing.
When this thread re-appeared a couple of days ago, I looked up the name of the CAR atty who filed to un-publish this case.
I emailed asking why he took that course of action.

So he just called me.

We chatted for about 10 minutes.
His position was basically that the broadness of the language in the decision undercut confidentiality requirements for listing agents.
In other words, he felt that the broadly defined requirement of disclosure prior to offer meant that future courts could find that there was no expectation of confidentiality for sellers about material fact (again, prior to the initial offer).

I disagree with his position but he has a point.
Listing agents are currently held to rigorous confidentiality requirements prior to offer, and rigorous disclosure after the acceptance of that offer.

Incidentally, he felt that the decision for the plaintiff was fair and correct (or that is what I understood)even though he found the opinion’s broadness unhelpful.

Just thought I would mention.

[bearishgurl]

Yes, UR, the opinion IS overly broad and lacking in critical detail. I think Summer’s lack of Agency designation is an important issue. I am putting in an order for a pdf copy of appellant’s op brief and should receive it in a day or two.

[bearishgurl]

Yes, UR, the opinion IS overly broad and lacking in critical detail. I think Summer’s lack of Agency designation is an important issue. I am putting in an order for a pdf copy of appellant’s op brief and should receive it in a day or two.

[bearishgurl]

Yes, UR, the opinion IS overly broad and lacking in critical detail. I think Summer’s lack of Agency designation is an important issue. I am putting in an order for a pdf copy of appellant’s op brief and should receive it in a day or two.

[bearishgurl]

Yes, UR, the opinion IS overly broad and lacking in critical detail. I think Summer’s lack of Agency designation is an important issue. I am putting in an order for a pdf copy of appellant’s op brief and should receive it in a day or two.

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