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The Fifth District Court of Appeals of Ohio sitting in Delaware County Recently decided a case dealing with an alleged acreage shortage and Addressed the duties of the seller and the real estate agents involved in That transaction. (See Schmiedebusch v. Rako Realty, Inc., 2005-Ohio-4884.) The case is insightful, as it illustrates the relatively minimal duties owed By a seller and seller's agent to a buyer, yet the extremely high duties Owed by a buyer's agent to a buyer.
Schmiedebusch dealt with a situation in which the buyer purchased a vacant Lot in Delaware County on which he planned to build a home. After the buyer Found the lot through an Internet search, he had his real estate agent Contact the seller's agent. The seller's agent then faxed the plat and grade Plan for the property and surrounding area to the buyer's agent. The buyer Claimed that he followed his agent and the seller as they "walked off" the Boundaries of the property during a physical inspection of the lot. At the Closing, the buyer received a deed and signed a mortgage--both of which Contained an accurate legal description for the property.
After the closing, the buyer claimed that he did not receive as much land as He thought he had purchased. The land he claimed he thought he was Purchasing actually encompassed two lots, but he only purchased one lot. He Alleged that the "For Sale" sign was placed on the property in a way that Led him to believe that both lots were one lot. He asserted that the seller And real estate agents involved intentionally misrepresented information to Him because any home built on the lot that he purchased would have to be Built behind another house. He then brought suit against the seller, Seller's' agent and his agent for fraudulent and negligent misrepresentation. He also brought a claim against his agent for breach of fiduciary duty.
The trial judge dismissed all of the claims against all of the defendants. However, the buyer appealed that decision to the Court of Appeals. The Court Of Appeals agreed with the dismissal of the claims against the seller and The seller's agent, but the Court of Appeals allowed the claims of breach of Fiduciary duty and negligent misrepresentation to proceed against the Buyer's' agent.
The Court first addressed the claims against the seller and seller's agent. The Court of Appeals applied the doctrine of caveat emptor and found that The buyer could not have justifiably relied on any representations of the Seller or the seller's agent. The court noted that caveat emptor precludes Recovery by a purchaser against a seller if: "(1) the defect or condition is Open to observation or discoverable on reasonable inspection; (2) the Purchaser had unimpeded opportunity to examine the property; and (3) the Seller did not engage in affirmative misrepresentation or concealment so Reprehensible in nature as to constitute fraud."
The Court observed that the plat provided accurate information about the Lot, as did the information contained in the MLS listing. Moreover, the Relevant closing documents also contained an accurate legal description. Thus, the Court found that the seller and seller's agent owed no additional Duties to the buyer in this situation.
The Court's view of the buyer's claims against his agent was much different. The Court assessed the fraudulent misrepresentation claim against the Buyer's' agent and found that the buyer was unable to establish that a Fraudulent mis-representation was made by the buyer's agent. However, the Court then closely analyzed the extremely high fiduciary duties owed by a Buyer's' agent to a buyer. Significantly, the Court agreed with the buyer's Argument that the buyer's agent "should have known the true dimensions of The property involved" based upon "the increased standard of competency Required of a real estate agent."
The buyer's agent asserted the doctrine of caveat emptor as one of his Defenses. The Court shrugged off that defense, indicating that it, "does not Apply when a real estate agent fails to disclose to his clients facts which Were known or should have been known by him that were material to the Transaction."
The Fifth District Court of Appeals issued a very pro-real estate agent Decision several years ago, in which it determined that only one provision Of Ohio's agency law provides a private right of action against a real Estate agent. (See Roth v. Yonts, 1999 WL 668586.) Therefore, the Roth Court Concluded that no private right of action exists based upon the other Provisions of Ohio's agency law. Nevertheless, in the Schmiedebusch case, The Court of Appeals closely analyzed the various statutory duties set forth In Ohio's agency law and found that the buyer was entitled to pursue his Breach of fiduciary duty claim against his agent.
Similarly, the Schmiedebusch Court found that the buyer only needed to show That false information was provided to him and that his agent failed to Exercise reasonable care or competence in obtaining or conveying that information, in order to pursue a claim for negligent misrepresentation against his agent. The Court of Appeals implied that it was relatively simple for a buyer to pursue a negligent representation claim against a buyer's agent, since a buyer's agent owes such a high standard of care to a buyer. Thus, the Court of Appeals also allowed the buyer to continue to pursue his negligent misrepresentation claim against his agent.
The Court of Appeals did not decide whether any duty was actually breached in this case. The Court merely found that the dismissal of claims against the buyer's agent was improper. Most importantly, the Court of Appeals emphasized the extremely high duties owed by a real estate agent to the client and indicated that when any such duty may have been breached, a trial would have to be held to determine whether any duty was in fact breached.
Disclaimer: ActiveRain Corp. does not necessarily endorse the real estate agents, loan officers and brokers listed on this site. These real estate profiles, blogs and blog entries are provided here as a courtesy to our visitors to help them make an informed decision when buying or selling a house. ActiveRain Corp. takes no responsibility for the content in these profiles, that are written by the members of this community.