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Warning About Internet Copyrighted Pictures

Pictures found on the internet are not necessarily free for agents to use.  Many are copyrighted and if agents use a copyrighted picture, they may be required to pay a fee for its usage.  Many of these pictures are of homes and neighborhoods that agents might wish to use in their marketing of properties, but be careful to verify whether the picture is copyrighted.

The main source of these pictures on the internet is Getty Images or Getty Rights Managed images.  They are not the only source of copyrighted pictures on the internet, but they have a very large database of these copyrighted pictures.  They are vigilant in checking to see who is using their copyrighted photos.  Very often, agents use these photos innocently and without knowledge that they are copyrighted, but that is not an excuse that will allow the agent to escape paying a fee for their usage. Read more »

Question and Answer Regarding Translation of Documents and Reports

Question:         If an agent reads and writes a foreign language, can that agent translate documents and reports in that language for their client?

 

Answer:           No.  If an agent translates documents and reports, it leaves open the possibility of a client claiming that the agent misinterpreted or misread the report.  For example, we had a case where an agent and the buyer spoke Spanish.  The agent read the inspection report to the client in Spanish.  The inspection report contained warnings regarding drainage issues.  The agent read those warnings to the buyer and the buyer accepted them.  The buyer later had drainage problems and sued the agent claiming that the agent failed to properly translate the warnings in the inspection report for the buyer.  If the agent had not translated that information, the agent could have used the defense that the buyer received and inspected the inspection report.  However, because there was a question about what was interpreted, we no longer had that defense available.

Court Awards Broker Attorney’s Fees Pursuant to the Listing Agreement

In Bardack v. Tomjanovich, a California appellate court recently upheld an award of attorney’s fees to Coldwell Banker pursuant to the express indemnity provision in the listing agreement. In Bardack, plaintiff purchased a home in Pacific Palisades for $6.5 million. The sellers purchased the property several years earlier for $4.25 million. At the time that the sellers purchased the property, they received reports and disclosures indicating that the home had active water leaks. The sellers experienced a water leak in the foyer. Two years later, they experienced another leak in the foyer’s skylight. A year later, they listed their home for sale with Coldwell Banker. The California Association of Realtors’ (“CAR”) listing agreement contained the following provision:

Seller further agrees to indemnify, defend and hold Broker harmless from all claims, disputes, litigation, judgments and attorney’s fees arising from any incorrect information supplied by Seller, or from any material facts that Seller knows but fails to disclose.

Subsequently, plaintiff made an offer to purchase the home for $6.5 million pursuant to a CAR Residential Purchase Agreement (“Agreement”). In the Agreement, the sellers were required to “disclose known material facts and defects affecting the property” to the plaintiff. Unfortunately, the sellers did not disclose to the buyer or Coldwell Banker the reports that they had received at the time they purchased the home, or that the home had active water leaks.

Subsequently, the plaintiff experienced several leaks and sued the sellers for breach of contract, negligence per se, intentional misrepresentation, negligent misrepresentation, concealment, rescission, and negligence for their failure to disclose the water leaks. Plaintiff also sued various inspectors, construction and design professionals. The sellers denied any wrongdoing and filed a cross-complaint against Coldwell Banker for equitable and implied contractual indemnity, alleging that Coldwell Banker was negligent and breached its fiduciary duty to the sellers in connection with their sale.

The matter proceeded to trial. The trials were bifurcated, limiting the first phase of the trial to plaintiff’s claims against the sellers and the sellers’ cross-complaint against Coldwell Banker. The jury found the sellers liable to the plaintiff for intentional misrepresentation, concealment and breach of contract. The jury awarded plaintiff damages of over $2.8 million and punitive damages of $250,000. The jury found Coldwell Banker and the agents were not negligent, nor did they breach any fiduciary duty to the plaintiff.

Coldwell Banker filed a motion for attorney’s fees and costs in the amount of $367,790 pursuant to the indemnity provision in the listing agreement. The trial court awarded Coldwell Banker $348,372. Plaintiff appealed. The appellate court upheld the award finding in an unpublished decision that Coldwell Banker was entitled to their attorney’s fees under the express indemnity provision of the listing agreement.

Please note that this case was not published by the California appellate court. Therefore, it may not be relied upon by the courts. However, it is a good indication as to how the court would interpret CAR’s Listing Agreement.

Agent Liability and Indemnification – Lack of Knowledge on City Penalties

Type Matter:  Real Estate Agent Liability and Indemnification
Issue:  Can a real estate Agent be held liable for lack of knowledge and failure to disclose city or county enforced penalties pertinent to a listed property?
Answer:  No

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Agent Liability – Personal Injuries to Minor

Type Matter:  Real Estate Agent Liability
Issue:  Can a real estate Agent be held liable for personal injuries to a minor child of homeowner who walked thru code violating, non-tempered glass?
Answer:  No

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Real Estate Agent Liability for Ordinance and Zoning Issues

Type Matter:  Real Estate Agent Liability for Ordinance and Zoning Issues
Issue:  Can a real estate Agent be held liable for failing to disclose to Buyer a recent city ordinance limiting the number of registered sex offenders who can reside at a property?
Answer:  Maybe

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Letter of Intent (“LOI”) and Advice to Client Tenant Regarding Utilization of Land

Type Matter:  Letter of Intent (“LOI”) and Advice to Client Tenant regarding Utilization of Land
Issue:  Should a Broker include language in an LOI requiring certain use of the property and provide advice to their prospective Tenant Client about legal and allowable land use of subject property?
Answer:  No

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Agent Liability – Signing for Clients

Type Matter:  Real Estate Agent Signing for Clients
Issue:  Should a real estate Agent sign Buyers’ Request for Repair document when Buyers fail to do so?
Answer:  No
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