More lawsuits against agents from a real estate expert

Education & Training with Real Estate Expert Witness Support

In my real estate work in San Jose area,  I continue to get called as an real estate expert witness when agents get sued.  You might wonder what an expert does.  In most cases, the buyer sues the seller and some times the listing agent, accusing them of not disclosing something.  They may or may not sue their agent.  But,  the Seller and listing agent usually cross-file against the Buyer's agent because they had the fiduicary duty to help and warn the buyer about issues.

Frankly, it is sometimes hard to defend the Buyer's agent because too many operate from the custom and practice of thinking that by simply giving the buyer the disclosure documents (without explanation),  they have fullfilled their duty.  Not so,  at least according the the 200 or so cases I have been involved in.  The fiduciary has the primary duty to help buyers understand the issues and when inspection or other disclosures are provided,  that agent has a duty to review those disclosures and point out the potential "tip of the iceberg" to the buyer.  Then,  once they do that,  they have a duty to advise them what the agent would recommend.  Then,  they wait for an answer. 

Agents argue about this all the time e.g.  the buyer saw the pest report which called the bath floor for $400,  so why blame me? Because you failed to tell them that once the floor is open and we find $4000 of additional damage,  the buyer has to eat it.....that's why.

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Guy Berry

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Comments (5)

Ginger Harper
Coldwell Banker Sea Coast Advantage~ Ginger Harper Real Estate Team - Southport, NC
Your Southport~Oak Island Agent~Brunswick County!

Thanks for sharing that....and YOU are right.


Mar 10, 2010 06:27 AM
Carla Muss-Jacobs, RETIRED
RETIRED / State License is Inactive - Portland, OR

How would an agent be held responsible for knowing that the bath floor, when ripped out would be another $4000 in additional damage.  How is that even something that ANYONE would know, let a lone a real estate agent?  Was the damage sub-floor repaired prior to purchase?  Who did the repairs?  How was the sub-flooring issue NOT able to be discovered when the $400 flooring was?  Hmmm . . . 200 cases?? You don't say. 

Mar 11, 2010 05:27 PM
Guy Berry
Real Estate Expert Witness Support - San Jose, CA
Real Estate Broker and Legal Expert

Carla, sorry but you missed my point.  The agent wouldn't know about the damage but they would have the duty to warn the buyer about the possibility that it might be more than the vinyl. It is logical that damage on the outside could be anything.  Our pest control paragraph offers the buyer to make further investigation if they choose to.  It would be like a stain in the ceiling downstairs under an upstairs bathroom.  The buyer might be told that there is no current problem but an agent should point out that it should be investigated. 

Mar 12, 2010 01:01 AM
Yolanda Hoversten
Self Employed - O'Fallon, IL
Referrals for O’Fallon, IL & the Metro East

I have not heard of a real estate expert witness before in my area.  Of the 200 cases you were called to be an expert witness, how many were found for the complainant? 

It's very disheartening to learn that agents get sued for sellers' non-disclosure, or for not divining what's inside the walls or between floors.  Yikes.

Mar 12, 2010 09:40 AM
Guy Berry
Real Estate Expert Witness Support - San Jose, CA
Real Estate Broker and Legal Expert

Yolanda,  unfortunately,  there are lawsuits and expert witnesses everywhere.  Most cases settle and never go to trial.  Regarding the agents knowing what is behind the wall, they are not supposed to know but should know enough to warn the buyer that there could be a problem.  If you see my post just above your's,  it talks about a ceiling stain. A buyer agent won't know what it means but would have a duty to point it out to the buyer and warn them of the potential problem. 

Mar 12, 2010 10:41 AM