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Feedback lawsuit

A local agent here (Another office, not mine Thank God) is being sued over a feedback issue;

The Listing Agent calls for feedback and is told by the Buyer's Agent that the buyers thought "the colors were tacky". The Listing Agent agent passes this onto their client.

A week goes by and the buyers can't find another home to fit their needs, so they decide they can redecorate the tacky colored house. So they make an offer. The sellers ask if these are the same people that made the comment and the listing agent confirms it is. The sellers counter at full asking price because they are upset.

The buyers are OK with the full price until they get to the closing table and they find out from apparently the Selliers attorney that the Sellers requested full price because they were really upset about the Tacky Color comment. The buyers are now suing their agent for disclosing information because they feel they could have gotten a better price if this information wasn't passed on.

This puts a whole new spin on my thoughts about feedback! What's your opinion?

Posted by; Vicki Watzlawick, Broker Owner, Exit Platinum Realty, Lake In The Hills,IL www.vickisdreamhomes.com

Posted by Vicki Watzlawick (Illinois Foreclosure Expert) on 06/04/2007 01:09 PM

Comments (291)

real estate feedback, agent feedback, home feedback, illinois real estate

Post is included in group: Realtors®

291 Comments on Feedback lawsuit

JUN

2007

Wow. After the buyers sue the agent, perhaps the agent can sue the big mouth attorney. The attorney, in turn, can sue the sellers for having a tacky house to begin with. Who can then sue THEIR agent, for not insisting that they repaint the tacky colors...

but wait...the buyers agent can also sue the sellers agent, for compromising his position with his buyers by telling the sellers about the "tacky" comment...

Wow, that could be a wakeup call. I don't think I would have told the listing agent the deco was "tacky". I would have said something PC like "it didn't meet their needs". Frankly, I wouldn't have wanted to alienate the sellers right off the bat because the buyers had some interest - I would be hedged my bets at that point. It's not unusual for buyers to go back to previous home.

In all honesty it comes down to confidentiality - did the agent break that - it is a good practice when providing feedback to simply say - they are still looking or that the home did not fit what they are currently looking for.

Most of us never stop to think about something this silly being confidential but it is - what your client says to you is confidential unless they have given you permission to share it and I would ask for it in writing.

The agents action did hurt her client - she broke the client confidence when she shared the thoughts that would upset most sellers

What was the relationship between the buyer and the "agent"? Was their a written BA Agreement, which would establish fiduciary, and confidentiality??

Interesting. I've always been puzzled by the process of "feedback". I don't ask for it. I figure I should know what I need to know to list and sell. I also figure that if a buyer was interested, they'd make an offer.

I have gotten feedback calls from listing agents who disclose information they should NOT. But, I never think much about it. Buyers are either going to like a home or they are not. Just because someone hears what someone said probably didn't change anything.

That agent does appear to have a rather big mouth.

I have had agents ask for feed back when I previewed a property to only get angry or defensive if I point out something obvious like the grass needs cutting or the home needs cleaning. I have learned to stay PC, because most people really do not want feed back.

Seems silly and petty, but I think that Thesa is right. Thanks for the wake up call, I just gave some feedback the other day that might not have been 100% okay for me to have given. Luckily, I was looking at homes for myself....hmmmm, I wonder if my errors and omissions insurance would cover me suing me? It's an idea?

Bob Mitchell

ValueList Real Estate Services, Inc.

Laurie and the only ones that will profit will be the attornies! The Sellers Agent couldn't compromise the Buyers position, I guess unless he was told to keep this info conifdential?

Jeff I am very straight forward and I too would pass on that info. I think it helps the Seller to know what is wrong. If a house smells like cat urine..I tell them! It drives me crazy when I get a call from an agent and all they say is "It wasn't the right house for them", and they don't tell me why. But now I guess i understand why. I guess in the future to CMA and my agent's we will need to have the buyers sign some sort of consent to disclose comments form..or just stop giving feedback. I'm thinking when we represent the Buyer and we are asked for feedback I might now be motivated to reply...I'm sorry but I represent the Buyer and their information is confidential.

Thesa I now agree after hearing all this, buy honestly I wouldn't have given this subject any thought if this didn't happen.

Lenn I understand that there was no BA but the fact that she represented them and wrote an offer that was accepted does prove that their was a client relationship formed. But the comments were made before the offer. It will be interesting to watch this one!

Randy I think I'll be doing the same real soon!

Bob Thats a definate Error in my book!

Vicki, I tell my sellers at the listing appointment that we are not going to sugar coat any feedback. What ever we hear is what we pass on... But, this is really concerning.

Vicki

I used Fax Feedback and it's very helpful. I obtain the agent's comments in their own handwriting. I guess I could use email, but there is nothing like having the seller read what the buyer's agent wrote.

It sounds as if the comments were relayed orally. If that is the case, SOMEBODY, should have protected the sellers interests. Decorating is a personal issue. Getting back to that Sixty Minutes issue...if we are really professional, we wouldn't say some of the things we do, would we (and I am including myself here, too).

However, I would hope that if the comment was written, that the agent would have called the buyer's agent is said something such as, "Are you sure you really want me to give this to my sellers? If our roles were reversed, would you?"

My standard feedback response "The home shows well but my clients are still searching" feedback is a catch 22 if you are honest you get reamed, if you are vague you get reemed, unless I am putting in an offer I keep it neutral,

I think feedback, although sometimes helpful (especially if you are looking for a price reduction and the feedback is that it seems overpriced) is normally a waste of time. Just because 1 Buyer doesn't like the color per se, the next might love it! Who wants to second guess a Buyer? Anyway, if a Buyer is interested, the agent will contact you with questions or better yet, an offer.

PS You are right, the big mouth attourneys are going to make the $$ (if it actually goes to court, which I highly doubt)

Missy..my thoughts exactly!

Keith I would think backing it up in writing would make this twice as bad! Does that fax have a ok to disclose to Seller statement on it written by an attorney?

Rebecca So then why bother? If you show a dump..you would say the same thing?

If my clients are interested in a home I don't leave feedback until they decide to put an offer and it's negotiated. Any comments on price/likes/dislikes could affect the negotiating. I guess I try to keep feedback vague.

That is so surprising. I've never heard about being sued based on feedback comments!! But I agree with the other members that we should keep our feedback comments neutral. Lesson learned!

WOW. I guess i need to be more careful about what i say. I think i will send an email rather then post the feedback to the mls site. Does your MLS system consider feedback to be confidential? if so then maybe the agent isn't in trouble. i would be pretty upset if i was getting sued by a client of mine. i guess maybe he should have take them to lunch one more time. Maybe we should all take the sugarcoating a bit more seriously. In the free country we live in i guess your not entitled to your own opinion about a house anymore. In what type of relationship was the broker acting for the client? (in Colorado we have Agency and Transaction Brokerage) not sure if that would have made the difference in this case or not. What a very interesting story. I hope it makes it to the MSN or whatever web start up page you use for a believe it or not type story.

Is the monster pig real or a fake? how is Paris handling her first day in Jail and who will be her first conjugal visit? And this out of the Real Estate world. When does a tacky color equal a lawsuit?

Stephanie They said the didn't like the home so I guess he assumed they were not interetsed. Then changed their minds. I agree on the interested part..if my clients show a slight interest, I won't be leaving feedback because then I feel I could be showing the seller's agent that my client is interested and he then thinks he has a captured audience. I will tell the Seller's agent that we are narrowing our choices and I will get back to them.

Linda Thanks!

Vicki...our MLS has a system for written OR oral feedback and I have never given any thought to passing along feedback to my sellers UNLESS it is insulting, which I guess they thought it was when the buyers used the word tacky. In my area of the country, most of our sllers could care less what the buyer's SAY as long as they WRITE up an offer.

Regards...Jay

Vicki- if the sellers agent requested feedback, and the buyers agent provided the feedback that came from the clients, no wrongdoing took place, fiduciary or otherwise. The buyers paid what they felt the house was worth (tacky or not) but we live in a lawsuit happy environment, which I'm sure was no secret to the attorney that was present, and created the bedlam. If a selling agent wants feedback, it's a cooperative effort- the selling agent is seeking this info at the bequest of the sellers. That they don't like what they heard is not the basis for a lawsuit. I'm going to continue to provide accurate feedback.

Well, this is one of the great things about Active Rain. Imagine, a lawsuit over feedback! I have never been comfortable with feedback, it stirs too many emotions. When I receive the faxed version I generally delete it without responding. The phone calls? Well there really aren't many of them. I leave messages for feedback and rarely get a call back. An agent calls to show a listing of mine, I ask them to call with feedback, they rarely do. I almost never give feedback and generally just say it wasn't the right house for them, too big, too small, etc... We constantly learn here on Active Rain. Whooda thunk it?

I just looked ... you're in Illinios? People act like that here is Los Angeles, I didn't think they did in your part of the country!

Marcus You rock! That was an awesome cute response! Thanks for putting me up there with the Monster Pig! LOL

an easy way to avoid this is ask your client to complete a feed back form - either in writing or online - I use www.showingfeedback.comwhich is free - now when you are the selling agent you can still add these to your list it is time consuming so I simply give a buyer a copy of this with each home and a photo from the MLS for each showing - if they complete it I share it - if not I use the canned approach - they are still looking - it did not suit their needs - or if I see something that really stands out - I mention it nd clarify that this is my opinion not my buyers - but I am careful to only give the basics like the day we were there I noticed an odor in the home - do the sellers have cats? I am not saying the house stinks - I am not saying the seller needs to get a clue - I let the listing agent do that - drop the hint without putting the property down.

The old standard..."not what my clients were looking for" seems very appropriate now. I don't believe I would ever say "tacky" maybe "not neutral enough" would suffice!

Vicki, I thought about that after I left the page. sorry.

We are looking for a new home so I have been reluctant to give any feedback on homes we might be interested in. If I were to give any, I might be compromising our position when it comes time to write an offer. We have worried about the exact issue you write about, that a seller might counter back with a higher price due to being offended. Thanks for bringing this to everyones attention.

Cheryl I really think it's the tough market that is fueling these lawsuits. It seems everyone is on edge lately. It would be interesting to see the number of Real Estate lawsuits per State. (So I know where to move too) LOL

Jay feedback is BIG here!

Laurie Thanks! I emailed my attorney to get his take on this as well. I'll post it IF he says I can!

Thesa..Does Showing Feedback have a disclosure statement in it?

Gary Their words are coming back to haunt them and now the poor Realtor is going to pay, but on the other hand, he was representing them and maybe should have asked them if it was OK to pass on the info. I've never asked but you betcha my offices feedback policies are changing this week!

Stephanie I understand and thanks

Jennifer Thank you so much! It's nice to know our posts on AR are helping others. Good luck with the purchase.

The real interesting part is going to be determining the damages or if any should be awarded. The buyers did not need to buy the house, but they did anyway. It was a choice. The potential price that the sellers might have taken can not be assessed as the property, one of a kind, has been sold at x price. Who knows that someone else would have paid for it or what other price the sellers may have considered? How about terms? Stupid to sue over if you ask me.

Hi Vicki,

Boy, this gives food for thought. I guess maybe we all need to adopt the "Thumper method" of communication, "If you can't say something nice, don't say anything at all". I shall adopt that method and utilize it when feedback is requested.

As for this situation, I have to agree that, based upon the facts as presented, these buyer's might just have a case. But, if they are going to go down that road (legal ping pong) then they should also probably sue the seller's and their reps for discrimination, based upon the fact that the offer was countered at full price because of a demonstrated prejudice against the people who made it.

By asking if these were the people who made the negative comment about the paint job, the seller's showed their intent to discriminate and, now that I think about it, the buyer's agent might also have a case against the seller's rep. Since the information about the comment made by the buyer's is not a material fact, it could be argued that the comment being revealed to the seller's, would be done only for the purposes of prejudicing the sellers. I see it as falling into the same category as answering questions or discussing with your clients the race, creed, color or religious preference or sexual orientation of the buyer's or seller's and we are all quite clear on the fact that we can't do that.

This should be a very interesting case. Please make sure to keep us all up on the results,

Thanks,

Tisza

Rich I agree it seems to be petty, but the Buyer feels his statements should have been protected by his agent and his agent's actions with disclosing his Buyers information caused him to pay more for the house. There weren't any more homes they liked and they were AT the closing table when they got this news. I agree on price..,I'm sure the house appraised out so it was worth it. I'd be guessing the judge will be relying heavily on what the Sellers statements are.

Vicki - Wow, what a slippery slope. I have so many thoughts on this, I just don't know where to begin.

Tisza Good point about the seller discriminating, but I think that falls under Freedom Of Speech and all though I agree that they were singled out and apparently punished for their remarks, I don't think discrimination will become a part of this. Maybe the Buyers need the "Thumper Method!" I hope my entire office reads your Thumper remarks! That's some GREAT advice. Thanks!

Sue At the beginning! :) Let us know your thoughts after you think it over.

Interesting! But it doesn't surprise me...if they did not sue over this they would of found something else to sue over. I send e-mails requesting feedback...I say the seller would like any feedback on the proeprty and that any information shared will be shared with the seller.

This is such a 'sue-happy' world today.

RE: feedback The only feedback that matters is if there is going to be an offer or not. I got a call this morning for feedback, I sent my buyers to an Open House yesterday it was their 2nd showing. My buyers just informed me they decided to rent because they don't have enough time since it won't close until August if they buy. So it really doesn't matter that they loved it they are not buying it.

I just heard of a lawsuit here with a different twist. The buyers agent didn't have a buyers agreement or have the buyer sign an agency disclosure form. Therefore it is recognized by the state that the buyers agent is a sub agent of sellers agent and fiduciary is to seller.

At the closing buyer says to seller " I would have paid the full ask but my agent said it wasn't worth it" Sellers attorney than says the buyers agent is not getting their commission because their fiduciary to seller was broken.

This is just nuts!

I think we should have a Don't Ask, Don't Tell policy.

I think I will respond to any requests for feedback with a link to this post.

I don't have an opinion, because I am not a Realtor... But as someone who is not in the business of selling homes, I LOVE THESE KINDS OF STORIES!

I wish more people would tell interesting, wacky stories like this. This is good reading. Thank you.

Mary Isnt it sad?

Mitch That ones a little more believable. But I'd still be extremely upset if I were the Buyers agent..sub agency or not. He brought them to the table and if he said it wasn't worth it he should have had a Buyers Analysis to prove it!

Tim I sent it to all my agents..it will be interesting to see what we incorporate as a new feedback policy in my office!

Wow! What is it all coming to?

Karen Thanks! I love this blog..becasue it's opening a lot of eyes! I hope we all can learn from it. It would be great if there were a lot more blogs like this!

Dan Pretty soon we will all need attornies to accompany us through out the entire transaction! Either that or Duct tape! :)

It is, unfortunately, a double-edged sword. As a homeowner selling my home, I would want to know why people are or aren't interested in purchasing my home, but as a professional in the business, I'd have to be careful about how much I really can say. I truly think it all narrows down to how things are spoken...the seller would probably not have been upset if the agent had simply said that the buyer liked the home, but would prefer different paint colors for their own taste. I'd prefer to hear that over "tacky" any day!

Stacy Good idea! I guess I'll think about my wording more carefully in the future! But I'm still curious as to how much legally we can disclose.

You would think an attorney would keep his mouth shut unless he was trying to incite trouble...possibly creating more business, if not for himself then for a colleague??? Maybe the parties being sued should sue him for making it known to the buyers that the sellers held out for full price due to the feedback.

This is the craziest thing I have ever heard. But I can tell you right now, it could have been avoided by either Realtor being more tactful. You don't relay a message from your buyers that they thought the 'Colors where tacky' you come up with something a little more creative. I would probably have said that the house showed well, but my buyers were concerned with some redecorating they might want to do. You don't say 'TACKY COLORS' ! As a Buyers Representative your client is your buyer and he probably should not have been so descriptive with his choice of words. And on the other hand the sellers agent could have been just as tactful. Then nobody would have been pissed off. Yes I think the whole thing is just stupid and I don't like lawyers that much, but come on its not the attorney's fault. It should have never of gotten that far imo.

Renee I never thought of that angle! Good stuff!

Chris I agree with you and Stacy on the wording, but I am still wondering if they would have gotten upset no matter what words were used? You know how some personalities are.

Is this considered a material fact? If so, it would have to have been conveyed to the best of the agent's ability to repeat the comment.

It really does come down to confidenality. In my office we have always been discuraged about giving feed back for this very reason. It is always safer to say "My clients have not given me permission to diclose any information" and leave it at that. That way you don't find your self in a law suit like this one.

Tanks Lisa Stevenson

I do not recal showingfeedback having a disclosure - but you can choose the questions - like price how did it show and so on...

Vicki, Interesting how much did that comment cost?

What about the attorney who stirrred stuff up at the closing table? Does he/she share any liability?

Deb I'm thinking it's color so is that a material fact? That's a tough call. I would think the attorney has a duty to his client as well and perhaps did the wrong thing by repeating it so I'm certain he will be included in this. I'll let you know as it unfolds.

Mitchell I'll try and follow the lawsuit and let you know once it is all said and done.

Vicki, Nice hornets nest you've stepped in here. Feedback is a relatively big issue here. I showed homes like crazy last week and received calls for feedback all hours of the day and weekend and, mostly now, via email. Sounds like something that could easily slip out of my mouth since I usually tell it like it is -- always appreciated by listing agents. Something to think about, for sure.

Joe Thanks! I'm still leaning on the side of having the buyer sign a simple form. I know if we stop giving feedback that the other offices will use that against us at a listing presentation and feedback beleive it or not carrys a LOT of weight here!

He stated the buyers opinion, you know what they say about opinions. Where is it written that opinions need to be disclosed? The sellers could decide they don't like the buyers because the seller drives a BMW and the buyer drives a Volks Wagon, but the opinion should never have decided or started any of this. I think everyone in that situation should grow up and I think the judge should throw out the case.

Another waste of our tax dollars squabbling over stupid sh..... imo

Now that'a a tale that I won't forget. Let us know how it turns out.

Chris I think it's a lesson to be learned and something us Broker Owners will need to adapt certain rules for. We know all about not disclosing our sellers information, so when representing a Buyer, I guess repeating their info, wether opinion or not, might be a form of disclosing information. You know how that is going to shake down..it's whatever they can prove it in writing. If they had no BA signed then perhaps it is all for naught.

Judi I will..thank you!

It would be interesting to watch the out come of the Lawsuit, just because they are suing their agent does not mean that their agent did something wrong he or she is innocent until proof-en guilty, may be they are suing the wrong person in my opinion ,please keep us posted as they proceed.

Thanks Paul..I will! proof-en..cute!

people will sue over anything these days..........that poor agent

Well, that is interesting. But you see, the listing agent and seller wanted feedback, so the "lookers" gave them their honest opinion. Now the seller's countered back with the full price offer and the buyers accepted it. I dont see how this could hold up in court if the buyers are trying to sue their agent. He did not force them to buy or to accept the counteroffer. So, now us agents need to worry about giving honest feedback about homes we have shown, in fear of being sued? That is a bunch of crap. Does make you think though.

If I'm representing a buyer I don't give a lot of feedback.

If my buyers loved the house and I tell the listing agent that fact I believe it could compromise my buyer client's negotiating position.

If they hated it or it's a dump I say it wasn't the house for them.

Our state association buyer agency agreement has a section where the buyers can give their agent permission to disclose any information that might be confidential. Unless there's something filled out there it's all confidential.

WHAT IS WRONG WITH THAT ATTORNEY?????? Doesn't sound too smart or hasn't been in this business very long! I find it outrageous that he said it. At least the agents knew to keep quiet.

WOW... that is amazing.

I get all the sides and all the points of view. And to be honest I don't know WHAT to think.

I know sellers that WANT to know what is working against the sale from the seller's perspective.

Color is a VERY subjective thing. However as a stager, if the colors WERE "tacky" I would have pointed that out to the sellers and guide them to colors that have more universal appeal. If they were fine... then I would do nothing.

Liz It's a crying shame!

Joe I still think even though the listing agent asked for their opinion that they might be breaking some sort of disclosure rules. I agree it's a bunch of BS but thank god it wasn't me!

Jim I see you are in Tennessee. I will look at my Buyers Agency AGreement, I'm pretty sure it states we can't disclose anything without their consent.

Gee-wiz! Call me old fashioned, but if I were selling a house, I'd WANT decent feedback -- and that's not the same as sugar-coated feedback. After all, if after a few showings there was a consensus that my choice in home colors was causing potentials to look elsewhere, I'd want to know.

Heck, I'd want to repaint.

I think the delivery of the feedback, as it was collected from the potential buyer is invaluable information. I also think that if the sellers disagreed, they should have been able to say "different strokes for different folks" and let it go at that.

Holding a grudge over a difference in preferred colors is a little juvenile. Getting a lawyer involved... well that's just moronic, IMHO.

How's that for opinionated? Don't ask me what I think of the color you painted your kitchen!!! :)

Debbie As slow as the market is right now..I'm sure their pocketbooks motivated them to keep quiet!

Craig You should teach a staging class for us Realtors!

Sounds like these sellers are still emotional 2-year-olds!

As far as the feedback goes, though, shouldn't there be some differentiation between the agent's feedback and the prospective buyers' position? I tend to give my opinions on feedback calls regarding price, conditions, decor, etc., and say little about the buyer's opinions apart from the "didn't meet their needs" or "they've offered on another property" kinds of things.

Thanks for the information.

I just sent it to my broker who has printed it out and is going to present it at our office meeting tomorrow morning.

I guess the moral is that agents should only give our own personal impressions and opinions. The only things we really need to tell the other agent about our Buyers is that they did not make an offer yet.

This is truly amazing and I didn't have time to read all the comments in reply to the post. However, this is what I am thinking: there has to be a middle ground. Perhaps the Buyer's Agent or the Seller's Agent could have said something like, "They weren't satisfied with the color scheme." This way truthful feedback is given, but it isn't insulting to the Seller's taste. Then if the buyer comes back, the Buyer's agent can say something to the effect that they have decided that they can easily change the colors and that they like the house itself.

Of course, hindsight is 20/20, but I will be cautious when giving feedback after reading this.

Angela You go girl!! My kind of agent! Tell it like it is.

Brian I would imagine the agent is going to take that position, but then again they aren't going to fedss up using the word TACKY. I guess it doesn't mattter wether the agent chose the words, or the buyer did, the end result would still be the same.

Sarah I'd be curious to know what the outcome of your meeeting is! Mines next Tuesday. Thanks for sharing!

Robin Thanks,,that was suggested earlier and I agree that's the way to go. Choose our words carefully or get the buyers to sign something..add it too our BAs that we will be reporting their feedback to the sellers.

Looks like your post has created a buzz....I like feedback on showings and like to share it with the seller. I usually followup with a phone call since many do not bother to respond to automated emails. Sometimes it motivates the seller to take care of items already suggested. However, I don't present it word for word, I don't want it to offend them, you can still deliver the message in a gentler manner. This will be interesting to learn the out come.

And the truth is, if the buyer's agent had said something PC like 'the house just isn't right for them' or 'it's a bit too small' then these same sellers could have come back at full list price because they were pissed that the buyers thought it 'just wasn't right'. People are a varied bunch! lol Yes the attys are the ones who win.

Renae..I'll keep everyone posted. Might be 2010 the way the courts work here, (JK) for the attornies, but I'll do my best.

Carole I think global warming is effecting everyone these days! Or are there that many full moons? LOL!

Vicki, Very interesting discussion. Sounds like a frivilous law suit to me. But you never know. If the buyers agent had a fiduciary he should not be opening his mouth. Currious to see how it comes out.

Thanks Bryant!

It's much easier if the buyer is also a seller. I generally tell my buyers that the listing agent may call for feedback, and is there anything I should tell them? Then the buyer will tell you what to say.

A little tact with the feedback issue could have avoided all of this.

Sharon..great advise! Ask first. Don't assume it's OK to share anymore.

Carol A few of us agree, but certain people can never be pleased so perhaps no matter what they were told, it could have ended up this way.

Well I sure don't think that lawsuit will go anywhere but the agent could have been more tactful with the feedback issue. I see no point in telling a seller their colors are "tacky."

Diane Yes Tacky could have been more tactfully stated. Say that 3 times real fast!

What has our world coming to. First sueing because the coffee at Mcdonalds is too hot now this. It is ridiculous, and I am a son o fan attorney who would definitely agree. Sue Happy we are. The only thing tacky about this is how wacky they are going to feel when they have to pay the realtors attorney's fees as well. Good luck

David If sue happy people stopped and thought about what they might ending up paying before getting so hot headed, perhaps there would be a lot less lawsuits!

I agree it may seem frivolous, but I would bet that it won't even make it to court... E&O will pay out on this one.

Sarah Good point! I bet $10,000 would make these peeps drop it. But what about the Realtors commissions? Would you roll over this quickly?

When I first started reading I thought it was foolish but you enlightened me with that interesting twist. Sounds like it could be a troubling technicality. Keep us posted on the results.

Thanks Dan! I will keep you posted. I had to go peek..you really run! Cute slogan!

Interesting post, Vicki. This raises some intriguing questions about confidentiality, fiduciary responsibility and so on. Seems to me the attorney has some culpability here. But the agent really was remiss in being so honest with the comment. One can understand, in this age of increasing litigation, how not sharing any information unless required maybe the best course of action. The listing agent certainly ought to know what the issues are, and if the buyers don't make an offer then there are clearly some issues for them.

Jeff

Vicki- just revisited- I'm thinking that the listing agent, frustrated with the tacky colors, probably had a "moment" and just spilled it to the sellers in order to get them to REPAINT. Easier to throw the buyers agent under the bus, and get it accomplished. The attorney present simply added fuel to the fire- how else to get paid? Unbelievable. Thanks for the thought provoking post!

Some of the new automated feedback companies say that its great for the sellers to hear the feedback right from the source. It sounds good but this is the result. The bottom line is that buyers do not owe feedback to anyone and now, buyer agents will not be willing to offer any. Most of the time, negative feedback is not necessary, issues are usually obvious to all who are open minded. Most sellers who have overpriced their homes or have not prepared them are aware of it whether they admit it or not.

Looks like the ball is back in the listing agent's court to straighten out misguided sellers.

Of course colors are irrelevant anyway, I never take those comments seriously.

Excellent discussion and wonderful thoughts from all. I will be styaing tuned to see what happens on this. Thanks for sharing Vicki!

Very nice post Vicki. Obviously the seller's agent is in the clear. The buyer's agent on the other hand is on the hook....so to speak. Almost anyone could have fallen into that trap of repeating a comment. Keep thy mouth shut is the 11th commandment!

Whenever I give feedback, I'm always very vague and talk in general terms, because the buyer could come back later and want to negotiate on that home. I also think most sellers can figure out what their home's short-comings are.

Wow! That's too bad for the buyers agent - it's an easy mistake to make. But I'm not sure that passing on the 'tacky color' comment was in their clients best interest. Breach of fiduciary duty? Almost for sure. Ouch.

Funny though... where does the attorney fall in this whole thing? Is it normal or appropriate for the attorney to discuss anything to do with the negotiation process while at the closing? The attorney is lucky that their statement didn't blow the whole deal. The attorney needs to feel some of the pain here.

And finally - what are the actual damages? The buyer was happy until they thought that they may have been able to get the home for less? Do you think that the seller will ever admit that they would have sold it to these buyers for less, if by saying so, they know that the buyers will get money? I don't think so. Probably just something that the E&O policy will cover - and then the brokers rates will go up.

So, what do you say when asked for feedback? 'My clients liked the home, they're just not ready to make a decision yet'. Useless feedback? Yes... but it's safe - for you and you're client.

Great Post! Good reminder to be careful what you say.

Jeff intriguing questions about confidentiality, fiduciary responsibility and so on, INDEED! Thanks for the comments.

Laurie I doubt that is the case because it almost didn't come up at all. If the attorney hadn't of slipped at closing I think none of this would have happened.

George I hope this post ends up with those feedback companies so they can add some verbage to protect my fellow agents!

Thanks Carl!

Gary Thands for the kind words and I love that 11th commandment!

Dan I'll be raking heed to that advise after this!

If my buyers said the colors are "tacky" I would probably just tell the listing agent that they didn't want to have to paint to their color scheme. Which is true. The problem came in the form of communication. As usual.

Chris I agree, and now the agent is eating those words letter by letter. I bet they don't use the word Tacky for a long while.

You will have to keep us posted. I often just say it wasn't a good fit for the buyer -- I never comment on price. If, there is an issue -- e.g., strong pet odors -- I just say it was a turnoff to me and they may want to consider airing out the house!

Joan I'm watching this one closely and might be issuing a feedback gag order for my agents until our attorney comments on this. I emailed him today and will let everyone know what he says, provided of course he allows me to post it. Thanks for the comment!

Wha a nightmare for the buyers agent..........................a good warning for us all to be very careful what we say.

Thanks Michael, This will surely be the topic at my next office meeting.

Vicky,

Experience has taught me not to say everything my clients tell me. I do not lie, but I definitely ry to be more polite when asked for feedback. Also, I wonder if the listing agent ever told them that the color were an eyesore (not like that, of course). I always tell my clients if I think the colors are not going to be as popular and most people already know that. Anyway it is a very interesting story, sometimes no matter what you do, some clients would not be happy and try to find an issue with your performance. Maybe there is more to the story than we know.

Oh my.....what a place to be in. I don't know what to think. If they buyers win, agents will have to give the generic feedback. It could be bad for sellers. If there is something (like paint colors) that bother buyers, they will never know. Also, they were willing to pay that price. They could have negiotate less or just walked away.

WOW....

Nobody is suing the loan officer?

j/k

This is interesting....

Carmen & Christy Experience had taught me to be honest and not sugar coat things. I thought before today that the more honest I was the more likely a Seller is to take that advise and if they hear it a few times, correct that. I can't imagine not telling someone that their dog left us a gift. How do you sugar coat that? I myself left feedback about a mean cat and 6 months later I showed the house again..not remembering the mean cat and the cat attacked my leg! I was NOT happy with this agent. I agree Christy... Why ask for feedback if it's all lies? Is it that what feedback is all about? I'll just set my feedback line to say.."The feedback on your property was the client thought the house just wasn't right for them, Thanks for calling and have a nice day! "

Vicki..... Sorry, late to this party. I liked laurie's first comment... funny. And Lenn Harley brings up some good points. And Tom's comment was funny.... But overall, what can actually be done in regards to this. I didn't read all of the comments. Anyone know the true law when it comes to this? I think the attorney could be in trouble. But was it the professor in the library with the lead pipe? Keep us posted.

On another note, CONGRATS on your 1st featured post.

featured

jeff belonger

And Vicki... I agree with your last statement, not to sugar coat things. Do you speak your mind? This has gotten me in trouble even on AR.... And I agree ...why ask for feedback when it could all be lies. I don't understand why people just can't be upfront. At least e-mail me if you have a problem. Anyhoo.... I am getting off subject.

jeff

If I ask for feedback, I want to know what the buyers are thinking. Will I use their exact wording with my sellers? Probably not. I feel one can get the point across without sugarcoating it, or hurting feelings...

sueing is bs, people do it but, we need to stop sueing for every penny we can. Just like the gal that spilled coffe on her lap and got money for it. She should have spilled her coffe it was her fault

Thanks Jeff! Woo hoo! A toast to all of you for your help! My first featured post and it has been a great one. So many wonderful peeps with comments. I have my attorney giving us his comments in the next day or two and we will see what he states is legal..here in Illinois anyway.

Tim Thanks..that seems to be the consensus today..choose your words carefully!

Eric It's sad what this world is coming to. The amount of lawsuits pertaining to Real Estate that I have seen in our areas this past year is crazy! It's such a busy thing my attorney just hired an attorney that specializes in Real Estate and Rental litigation!

The things people sue for these days are ridiculous. Although I can see where the sellers would have some grounds to bring suit. I guess we all need to be careful about the feedback we give, although I'd say the attorney should have kept his big mouth shut!

Ryan The BUYERS are suing. Not the sellers.

Oops, sorry about the typo. I knew that, just had a little brain freeze :)

JUN

2007

Ryan..I'm glad I'm not the only one with sometimers! I blame them moments on the blonde hair!

Wow, I guess we need to watch what we say to anyone!! I previewed a home for a client a couple of weeks ago, as soon as I walked in, an overwhelming cat 'smell' came over me. When I mentioned this to my buyer, they decided not to look at this home. However, when the listing agent called me for feedback, I told her about the smell (which she knows about, but the seller is immune to the smell and doesn't smell it). Incredible story...

Thanks Karen! Hope the seller doesn't read this.

This is a wake up call.When acting as buyers agents, we should ask the buyers if we can convey the feedback and if they" say no" do not duote the buyers. If agents have their own feedback or recommendation they can give it. If it is a comment on cosmetic work like paint, I ask the buyer what they think it will cost, and ask them if they got it for less taking it into account, would they buy it, and if they agree that is the feedback I give.Sellers are very sensitive about their decor and pets and it is difficult to give them feedback criticizing either. But they have to be told the truth if we want to sell the house.

Gita I always explain to my sellers at the listing presentation that thery can expect honest feedback from me and if we do hear the same objections a few times then that will be an objection we need to address. I guess we need to come up with something similar to tell our buyers when we are explaining agency and the way we work. Thanks for the comment!

Amazing. Generic feedback for me. :)

Looking forward to when you hear the outcome.

Thanks for bringing this up.

People like to sue now days.

Doreen You are welcome..thanks for reading.

Bruce I see it happening so often now, it's sad.

Boy, that is convoluted. The agent, it might be argued, was just lowering the expectations of the seller to anticipate something less than a full price, wholly enthusiastic, offer. Like a little warning. That could have set the stage for negotiations but it all backfired. Since real estate is negotiations, it is hard to do effectively if you cannot say anything but have to stay mum.

This will be interesting to learn what the result is. Unfortunately, we live in a litgeous society. It is possible to sue anyone over anything regardless of its merit. In the end, the only person who will make out is the attorney who filed the suit. Facts that materially affect the value are disclosed. Opinions...well perhaps like noses, everyone has one and should be blown discreetly.

I thought truth was a defense....in my opinion any competent judge would throw this suit out. How do people have the time to worry about this crap? Just wondering....

George Orwell must be smiling like a cheshire cat! Lawsuits because of what someone thought! The idea that an agent cold be sued because of what a third party THOUGHT about their listing is absurd. What rabbit hole did these folks fall into?

Hi Vickie

I'm sure your getting some feedback on this. Its amazing what people sue over. I guess we need to be careful about giving any feedback espiecally if there is a posibility of buyers and sellers getting upset even though its words from their month. I always ask the buyers for feedback and inform them that the seller through the listing agents would like some feedback and that I would be calling them. If they say don't contact the listing agent then I won't.

I still don't think this is considerred as disclosing sensitive information since when the comments were made, the buyer didn't have the intention to buy. The agent shall not disclose such info if knowing the buyer would like to put down an offer.. A fine line to draw... But we ask for feedback all the time.. so how should we handle it now?

It is amazing what people will sue over these days. We have agents asking about feedback the minute you drive away from the house. What help are you to these agents if you just sugar coat everything?

The purpose of feedback is to help put the house in a more "saleable" position. Guess I'll just go with "It just didn't fit my clients needs." The other agents will be annoyed but . . .

Steven convoluted is right!

Allison..we are betting the E & O pays out before it gets to court.

Peggy I guess the buyer's attorney agrees and feels his clients position was compromised, either that or he doesn't care cuz he is geting paid by the hour.

Cheryl, I think that's the lesson we are all learning here!

Patrick the hole that is owned by the attornies!

Christine..that's my concern and I am hoping to get some good legal advise or watch this for the outcome, cuz I don't believe in sugar coating.

Sandra I'm seriously thinking about either having my agents get authorization in writing, maybe incorporated into their BA agreement or a separate form. or just nixing feedback all together and telling the agents I'm sorry I represent the Buyers and their information is confidential.

Noname I'm glad I'm not the only one with blonde moments!

i agree, bottom line is that the agent did, in fact, cost the buyer money.

As Shakespeare said in Henry VI "The first thing we do, let's kill all of the lawyers". As that is impractical due to the sheer glut of lawyers, why not try this. Make a list of all of the positive features of the house you are listing and another list of all of the negatives. Get your seller to whittle the negative list down as much as possible. Then you won't need as much feedback. When the seller wants to know why their house isn't selling, all you have to do is look at your list. You can then decide if you want to further reduce your list or your price.

Vicki,

I hope that after a few weeks tempers cool and the lawsuit is dropped. If that doesn't happen, then the presiding judge should do it. No wonder our court system is overloaded.

John Thanks!

Susan a Smart man tha Shakespere was.

Esko I really think this case is going to change a fewe things in our industry..at least here in my back yard it will!

OMG! feed back is a big issue in my market and I'm always careful about what I give for feedback...but this is extreme! please keep us posted on this and congrats on you first featured post.

These kinds of posts make me wonder if selling real estate is really worth it. We can't even be honest with feedback???? Ridiculous in my opinion but I will certainly be careful in the future however. Isn't feedback a way to inform seller's of what buyers are thinking and why their homes is not selling. I've gotten really honest feedback and I sugar coat it but then I think why am I doing this? Am I hurting my Seller. I guess you just can't win. Who has the answer on this one?

Thanks Monika! I will keep you posted.

Judy Pretty soon we will only be able to point and smile. I'd love to know what some of the other Broker Owners are going to be doing in their offices! I guess the outcome will set our answers. For now I'm counseling my agents to hold off with feedback until our office meeting so we can talk about this.

I just can't figure out why the buyers aren't also suing the home inspector for not recommending a color change in the report. And people say this isn't a litigious country!

LOLing at Laurie's first comment.

I always give honest and sometimes brutal feedback that is MY opinion. Last I checked they can't sue me for my own opinion!

People will sue for anything thease days

David Be careful there! I've actually seen color on a report!

Jennifer I'm just like you girlfriend! But the last thing I want is someone to hold my commission or any of my agent's and a fight in court. Guess I'm going to have to be less bold. THIS SUCKS!

Jim..Thanks

When representing buyers and providing feedback, I try to make it clear that the feedback is coming from me as an agent, not from my clients.

I always provide feedback if asked. I'm appalled by how many people simply refuse to return phone calls or answer emails regarding feedback. If you don't want to provide feedback because you are worried that you might say something you shouldn't, then you should still respond to the email or phone call and let the selling agent know that you are not ignoring the request or being rude, but that it is your policy not to provide feedback. It is just good business to remember that part of our job is to maintain and promote good working relationships with cooperating agents around town! Let's be polite & remember our manners!

As for my sellers, I know that they really want to hear how well their home shows. They get so annoyed when agents don't provide feedback. From a seller perspective, they simply think those agents are lazy and rude!

Kelly In this case I think they would still have countered with a full price offer wether it was the agent or the Buyer. I think the Sellers agent could have softened the blow, as should have the Buyers agent. It is the agent that is getting sued, so I think in the future you and I could face the same problems. If we say the wrong thing we might be to blame. I think this is all wrong and messed up!

JUN

2007

Great Post!!! Something to keep in the back of our minds.

Diane I've been very careful of what I am saying to Selling agents these past few days!! Thanks for the comment,

Yikes, I was showing all day Monday and again today and have started getting the feedback calls! I think I'll respond via email so at least I can have a written record of what I did or didn't say.

I can't wait to see how this lawsuit pans out. Thanks again for sharing.

Kelly I'd be more cautious about putting anything in writing! At least one can plead hearsay if we call and say we were misinterpreted.

Wow, this is very interesting. I always tell my buyers that the seller will want feedback from our showing, and I ask them what they want me to say in that feedback. In effect, they are aware that I will be passing this information along, but I don't have anything in writing from them. I'll be keeping my eye on how this pans out!

Thanks for commenting Jeannie! I think you are one of the few I heard of that actually discusses this with your client. Good job!

Honestly, I think this is crazy. I tell my clients I will give them honest feedback from the buyers agents. I tell them word for word. I also give my honest opinion on homes I show. If someone wants to go after me for that then go at it! We are so sue happy around here, it is really too bad...

Brandy Yes it is sad. I guess we will all be choosing our words more carefully. Thanks for posting!

JUN

2007

Liked the post. I agree with the buyers. The comments are very interesting. Representing your client is more important than accommodating a fellow agent. Feedback is really not what it used to be when we all represented sellers.

Ardell I too think the buyers had a right to be upset. But would have never of given it much thought until now. It's our jobs to protect our clients! Thank you for commenting.

After I was feedback stalked six months ago, I quit playing that game. I pondered many reasons why I shouldn't and agency relationship was up there on my list.

With the current pressure from sellers we receive, it is no wonder why agents are doing this so much and why sellers get all bent out of shape.

Renee Good point! I just hate getting feedback requests 4 times in 2 days! And even worse now they are calling me cell phone. I am almost tempted to change my message, And if you are an agent looking for feedback no return calls will be made unless the request is left at my office. Thanks for commenting!

JUN

2007

Vicki,

I had sellers tear up a deed and walk out of the closing after all the papers were signed because the buyer ask to get her carpet man into measure the living room for new carpet, saying they couldn't live with the lime green shag!

When I moved from Michigan where we closed with everyone in the same room at the same time, I discovered out west they close in escrow and often the buyers and sellers never meet. Escrow is the most civilized improvement in transferring real estate since we stopped shooting the Indians for it.

As great as escrow closing are the same people transfer possession at recording, and that's pure insanity!

I was the selling broker on the first escrow closing in Kalamazoo, 30 years ago last September. Prudential charged me $5.0 to do what they called a "guaranteed closing", the seller a local pastor faked recites for two years taxes and it didn't come out for another year. That $5.00 saved me over $5,000.00 in stopping the City of Portage from taking the buyers home. I love escrow!

Bill

William J Archambault Jr

The Real Estate Investment Institute

http://www.reii.org

Wow William I can't imagine a closing being killed over a comment about not liking the carpet! Did the buyer sue for performance? And a local Pastor faking receipts? There are a lot of crooked peeps put there!

No, they didn't sue. I sold them a different house the next day.

I also sold the house again, but I'd warned the buyers what not to say, before closing. I sold that house 5 or 6 times over 10 years.

I did find out the husband's reason for selling was to get rid of the lime green shag carpet and the dish water blond.

There is a lot more to the story about that pastor, involving him with an ax the buyers, the police, and me. Over the years I've done 8 deals with pastors, all of them horror stories! In 7 cases the pastors thought they were above the law and the contracts they signed. In the last case my partner and I took a church as down payment on a building we were selling. We'd given the church 6 weeks so they could get the new building ready, they needed an extra 6 weeks, so I agreed to it for free, our contractor could not start on the building for two months, so it didn't hurt us. My partner came home from London two weeks early, but didn't tell anyone, He did run into our contractor at a gas station. It seems the contractor had a job cancel so my partner said he could start on our project, all without calling me. It was early Sunday morning when the pastor called me, talk about hell and brimstone! I didn't think pastors knew those words. I ended up arranging a hall for them on a Sunday morning from 200 miles away. We ended up paying for 6 Sundays. It was nasty!

Bill

Wow I will be sure and stay away from Pastors! Love the comment about the dishwater blonde!

Viki - Just stopped back for anothe look at all the comments - Great post - I've passed it along to many of my associates and my broker.

Thank you Judy! I'm still waiting for some attorney (mine included) to let us know their thoughts! For now my office has been put on alret to choose their words carefully.

JUN

2007

Vicki,

Sorry about the blond remark, but there were 160 some comments between your photo and my remark.

The problem is I'm on the triple "E" wingtip diet. I lose weight by keeping my foot in my mouth.

Bill

William Triple E..wow you have big feet..with those I'm sure you will lose a lot! :)

Wow, I can see how angry both parties can get over "comments". I found before that I would never knock a home, no matter how 'tacky' just in case the buyer did want to come back and buy it. The Agent's comments and use of the word 'tacky' seemed innocent enough, if she thought the buyer was not going to return and buy the house.

However, it may have been a good negotiating strategy to soften up the seller, for a price reduction or a decorating credit for her buyer clients. That would be my defense. Maybe the listing agent was stupid for repeating the word 'tacky' to the sellers.

I always hope the feedback I give will be helpful. If I can word, phrase, withhold or structure that feedback to for my buyer's benefit, I will. If my buyer is definately not interested, I'll try to provide constructive criticism to help the seller and seller's agent. I also agree that ANY feedback could be detrimental to the negotiating. Our jobs are to keep personalities, and personal property (including decor) out of the selling of the real property.

Looks like the Seller's Attorney is the one that passed on confidential information from his seller client. Actually you don't even know if his statement was the REAL reason they countered full price. There may have been other reasons, not disclosed by or even known by the Attorney. Maybe the Listing Agent was inexperienced and couldn't convince the Seller to put aside the comments and negotiate in "good faith".

I also counsel sellers to INSTRUCT their attorneys how they want the transaction to go. The Seller should be in charge. If the Buyers found an "out" at the settlement, the Seller's attorney would have been the cause. My guess he was not a "Real Estate Attorney". A good Real Estate Attorney would know to NEVER say something like that.

I counsel sellers at settlement to NEVER bring up anything negative about the house, neighbors, neighborhood, how much interest the buyer is paying, the price he is paying or ANYTHING.

If I were the Agent, I would have quickly made a joke of the Attorney's comment and laughed it off, to diffuse any ill will. The Buyer's could just as easily found reasons to sue the seller AFTER the closing, all due to the Attorney's comments.

But there IS a lesson here in keeping confidential information, confidential. Breach of fiduciary is a serious allegation. Judges already think we make too much money.

The issue will be that the Seller's side heard comments probably NOT specifically authorized by the Buyer-client.

We should think about addressing getting permission even verbal permission from the buyer to give feedback you as their Agent deem appropriate.

I don't think this will go to trial. But the Agent will pay a penalty. I once heard it said that people often do not sue for actual damages, many times it is just to get even, or revenge or to teach a lesson. There may be some buyer's remorse lingering here. The buyer's were made to feel stupid at closing, and now want retribution.

WATCH YOUR WORDS!

Well that was a fantastic response. I wish I could give you a big thanks..but you have no name!

This comment is priceless! "Our jobs are to keep personalities, and personal property (including decor) out of the selling of the real property."

My name was erased because I had to re-enter the graphic anti-spam. I'm glad you found the response useful. GREAT topic and I'll review my words carefuly from here on.

Walter Crane, RE/MAX of Cherry Hill, NJ

Thanks for stepping up Walt! Nice to meet you.

JUN

2007

What an interesting Blog. Yes, I want to toss my 2 cent opinion in this mix. We had a buyer that I knew was going to be a problem from the get go. There was no way they were going to buy this house. We built 2 homes (one we happily live in and love).

During construction, we had every neighbor try to get their hands into our pockets. Next door, the folks were ripping out the surveyer stakes 5 times and finally they tried to pull out the monument marker out of the sidewalk. We werre threatened with a lawsuit and they tried to shut down the project every day and became a nuisense with the City. We couldn't b