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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 »

Guidelines for Hiring Licensed or Unlicensed Assistants

It is important for a real estate agent to follow proper procedures when hiring licensed or unlicensed assistants.  First, there are two CAR forms that should be used when an agent decides to get an assistant.   There is the Personal Assistant Contract as well as the Broker/Associate-Licensee/Assistant Third Party Agreement.   It is suggested that both these forms be used.

In addition, CAR has an excellent Q & A entitled “Unlicensed Assistants” that lays out in chart form the activities that unlicensed assistants are legally permitted to do and those that are not permitted.   It is suggested that the agent hiring an unlicensed assistant provide the assistant with this form and have the assistant sign it on the last page indicating that they have received this and that they agree to abide by the guidelines set forth in it. Read more »

Advisory Regarding Service Animals and Emotional Support Animals

Agents should be very careful when asked whether a landlord will accept pets.  Both Federal and State law require a landlord to reasonably accommodate a tenant’s disability.  Disability is defined very broadly to include any mental or physical disorder or condition that makes it difficult to perform a major life activity.  If a tenant requests that the landlord permit a service animal or emotional support animal because it is necessary to accommodate the tenant’ disability, the owner would be required to allow the tenant to keep the animal in most situations. Read more »

Team Names

The California Real Estate Legal Alliance (“CRELA”) recently posted the attached article entitled, “Summary of BRE regulations regarding Team Names and Fictitious Business Names.”

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.

Recent Survey Shows A Majority of Landlords and Tenants Have An Inadequate and Incomplete Understanding of Basic Rental Laws

Zillow recently reported that a majority of landlords and tenants show a fundamental misunderstanding of basic landlord-tenant laws. For example, 85% of tenants and 76% of landlords are unaware of the laws pertaining to security deposits and credit checks. 77% of tenants and 69% of landlords lack understanding of privacy and access rights. 62% of tenants and 50% fail to understand the laws on early lease termination.

Many agents are now becoming involved in rental properties by virtue of the increase in rentals in the marketplace. Agents are encouraged to stay out of disputes between landlords and tenants. If such a dispute arises, agents are encouraged to refer their clients to attorneys knowledgeable in rental laws.

Court Held that Revocation of a Real Estate License Was Not Authorized Where the Salesperson’s Conviction Was Dismissed

In Ryan-Lanigan v. Bureau of Real Estate, a California appellate court held that a revocation of a real estate license was not statutorily authorized where the salesperson’s misdemeanor hit and run conviction was dismissed. In Ryan-Lanigan, a salesperson was charged with a misdemeanor hit and run with property damage. She pleaded no contest and was convicted. The California Bureau of Real Estate (“CalBRE”) sought to revoke her license based on the conviction. Ryan-Lanigan moved to withdraw her plea. The trial court granted the motion and accepted her no contest plea to a violation of basic speed law and dismissed the hit and run charge in the “interests of justice.” The signed order of the trial court also indicated that the conviction was sent aside as of the date of the entry of the plea. Notwithstanding, CalBRE revoked her licensed based on the hit and run conviction.

The agent petitioned the trial court. The trial court entered judgment in the salesperson’s favor and ordered CalBRE to set aside the revocation and remanded the matter for reconsideration. CalBRE appealed contending that the revocation of the license was authorized under Business and Professions Code §10177 despite the plea withdrawal and the set aside of the conviction. The court of appeal affirmed the trial court’s ruling, holding that B&P §10177 did not authorize the revocation of Ryan-Lanigan’s license because the provision does not allow discipline when there has been a dismissal unless the dismissal is pursuant to an expungment.

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