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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.

Transfer Disclosure Statement Has Been Amended

Effective July 1, 2014, the Transfer Disclosure Statement has been amended to require a seller to disclose if a seller is aware of certain construction defect claims under SB800.

The revised TDS inquires whether a seller is aware of any of the following claims threatening to or effecting the property:  1) claims for damages by the seller based on construction defects; 2) claims for breach of warranty; or 3) claims for breach of an enhanced protection agreement, including any lawsuits or claims for damages under Civil Code §910 or 914 alleging a defect or a deficiency in property or common areas.  These changes relate to claims arising out of SB800 including Civil Code §895-945.5.

SB800 was a Senate Bill that was previously passed by the legislature.  The legislation was supported by the building industry to minimize construction defect litigation.  While it is a quite detailed set of statutes, in general, it allows a builder to require a homeowner in new construction to notify the builder of any potential claims or construction defects prior to filing suit.  The builder then has an opportunity to correct those defects.  The builder may also require buyers to mediate and/or arbitrate.

The purpose of the change of the TDS is to require any homeowners who have claims against a builder under SB800 to disclose those claims to new buyers.  The California Association of Realtors has posted an updated version on Zip Forms.

Court Requires Transfer Disclosure Statement on Mixed-Used Property Where A Residence Exists

In Richman v. Hartley, a California appellate court recently held that a Transfer Disclosure Statement is needed on a mixed-use property containing both residential and commercial structures. In Richman, defendant Hartley made an offer to purchase the Richmans’ real property in Ventura, California. The property was a single parcel improved with a commercial building and a residential duplex. Richman did not provide Hartley with a Transfer Disclosure Statement. The parties signed a non-standard Purchase and Sale Agreement, but Richman (the seller) was required to provide all appropriate disclosures to Hartley. The Agreement contained an as-is provision. The Agreement also stated that it was not contingent upon any inspections or any other conditions. The buyer failed to close escrow and the seller sued the buyer.

The buyer defended the lawsuit by claiming that it was a condition precedent to purchasing the property that he receive a Transfer Disclosure Statement (“TDS”). The seller responded by arguing that a TDS was not required because of the as-is provision and that the property was commercial. The buyer filed a motion for summary judgment asking the court to dismiss the case on the ground that a TDS was required before he was required to close escrow. The trial court found in favor of the buyer. The seller appealed and the appellate court affirmed the judgment.

The appellate court held that the TDS is required on any property containing one to four unit residential structures. Therefore, it is irrelevant that the property had a commercial building. The TDS was required as a residential duplex existed. The court also noted that a TDS may not be waived in an as-is sale.

Court Holds that Listing Agent has Fiduciary Obligation to the Buyer Where the Broker acted in a Dual Agency Capacity, But With Separate Agents

In Horiike v. Coldwell Banker Residential Brokerage Company, a California Appellate Court recently held that a listing agent could have fiduciary obligations to a buyer where a different agent from the same brokerage represented the buyer.  In Horiike, Chris Cortazzo was a salesperson with Coldwell Banker.  He listed a property for sale on the Multiple Listing Service (“MLS”).  The MLS provided him with public information indicating that the square footage of the property was less than that represented by Cortazzo on the MLS.  Cortazzo subsequently changed the MLS listing to state that the approximate square footage was “0/O.T.,” which he meant zero square footage and other comments.  Plaintiff engaged Coldwell Banker and a different agent from a different office to represent him in the purchase of a property.  He visited the property at issue.  The listing agent gave the buyer a copy of a flyer that listed the property with the original square footage noted in the MLS.  The buyer made an offer and escrow was opened.  A confirmation of agency relationships was signed.  Escrow subsequently closed.  The buyer subsequently sued the listing agent and Coldwell Banker for misrepresentations relating to the square footage.  That claim included a breach of fiduciary duty claim.  Read more »

Risks Associated with the Sale of Investor Properties

A recent development in this market is the purchase and resale of properties by investors.  Investors, by the droves, are purchasing properties at foreclosure sales or pursuant to short sales, improving those properties and reselling them for a profit.  While this is a very positive development for the market in that these investors are maximizing profits, there are risks associated with these resales.

Investors, who sell properties, are required under the Civil Code to prepare a Transfer Disclosure Statement (“TDS”).  Unfortunately, many of the investors have little personal knowledge of the condition of the property.  Some investors have never seen the property and many have seen them only once or twice.  Most have never lived in the property and lack any knowledge about the condition.

When a seller completes a TDS, the questions start with, “Are you aware of…”  Read more »

Disclosure of Pest Inspection Report

Question: I am a listing agent. The sellers obtained a pest inspection report approximately one year ago. The property is currently in escrow. The buyers obtained their own pest inspection report. Does the seller have to disclose the prior pest inspection report?

Answer: Yes. The pest inspection report is material and must be disclosed by the sellers even though the buyer obtained their own more recent pest inspection report.

Question: Is the sellers’ pest inspection report invalid, since it has expired?

Answer: The sellers’ prior pest inspection report still has to be disclosed. Pest inspection reports do not “expire.” The Pest Operator Control Board indicates that if a pest inspection is more than three months old, the property must be reinspected, but does not provide that inspection reports “expire.”

Water Infiltration/Mold

Type Matter:  Water Infiltration/Mold
Issue:  Can a real estate Agent be held liable for allegedly mis-diagnosing the cause of moisture under or around the property?
Answer: Probably Not

Read more »