Dual Agency Case Upheld

Our contracts are ten pages of legalese designed specifically to protect realtors from lawsuits.  Would the outcome have been different if the plaintiff sued his own agent too?

From the OCR:

A Coldwell Banker real estate agent at the center of a dispute that went to the California Supreme Court did not breach a fiduciary duty to the buyer of a Malibu mansion, a Superior Court jury ruled Thursday at a retrial of the case.

Nor did the agent intentionally or negligently misrepresent the property, the jury found.

The Supreme Court ruled in November 2016 that a real estate agent owes a fiduciary duty to the buyer – not just the seller – when one brokerage represents both sides of a deal. The case then went back to the trial court.

The dispute began after Hong Kong multimillionaire Hiroshi Horiike bought a Tuscan-style Malibu mansion overlooking the Pacific Ocean for $12.25 million in cash in 2007. The listing agent, Chris Cortazzo, gave him a flier that said the home had 15,000 square feet of living space as well as an MLS listing that did not specify the square footage.

But a building permit indicated there was a total of 11,050 square feet, including a guest house and a garage, while the tax assessor’s records showed it was less than 9,500 square feet.

The square footage question is complicated because Malibu uses a different metric than elsewhere, extending the measurements to garages and other spaces beyond the primary residence.

Horiike, who signed an advisory saying the broker was not responsible for verifying square footage, bought the property without further investigating its size, according to court records.

A couple of years later, seeking a permit to remodel a room, he found out the house wasn’t as large as he thought.

Both Horiike’s agent and Cortazzo worked for Coldwell Banker, so the firm was the dual agent for the buyer and seller. In 2010, Horiike sued Cortazzo and Coldwell Banker, stating they violated their fiduciary duty to him.

The defense argued at the first trial that Cortazzo was the exclusive agent of the seller and didn’t have a fiduciary duty to Horiike. The first judge agreed and dismissed Cortazzo from the case. A jury then ruled in Coldwell Banker’s favor.

The case was appealed, then went to the Supreme Court. While the court ruled there was a fiduciary duty, it did not rule on the merits of the case.

The retrial began on March 19. Horiike sought $4 million in damages plus interest, bringing the total to $7.5 to $8 million. Jurors got the case the afternoon of Wednesday, April 4. The verdict came back roughly a day later.

Cortazzo issued a written statement through Coldwell Banker.

“I am pleased with the court’s decision. I operate with integrity and strive to uphold the highest of ethical standards. As always, I remain completely committed to my clients and bringing them a premier level of service,” he said.

Horiike was not in court for the verdict. Zachary Shorr, his attorney, said Horiike may appeal.

“I wouldn’t hesitate to if I were him,” Shorr said.

Link to Article

Dual Agency?

If he signed an agreement to represent both parties, he’s got some explaining to do (H/T daytrip):

The owners of a historic Hollywood Hills home have sued “Million Dollar Listing” star agent Josh Altman for fraud and breach of contract for allegedly duping them into a deal to sell the home at a steep discount to one of his friends.

The sale never went through, but the homeowners, Gigi and Paul Shepherd, contend that Altman conspired with his friend, Nicholas Keros, with whom he has worked on previous real estate deals.

Keros filed his own lawsuit against the Shepherds, which the homeowners say has left them “hundreds of thousands of dollars” in debt and forced to declare bankruptcy, according to their suit, filed in LA County Superior Court last month.

Named as defendants are Altman and Douglas Elliman, where he is an agent. Keros is not a named defendant.

The Shepherds inherited the Richard Neutra-designed home on Sunset Plaza Drive from Gigi’s aunt, Josephine, in the mid-2000s. It was was listed for $10.5 million last fall. The property is 1.2 acres and marketed as “a truly unique development opportunity.”

They met with Altman to list the home early last year, and agreed that he would represent both parties if he was able to bring a seller to the table.

A few weeks later, Altman introduced Keros to the Shepherds as a potential buyer, but the suit claims he did not disclose Keros was a close friend.

Shortly after, Altman called the Shepherds and said Keros was a serious buyer, but would walk away if they didn’t meet with him immediately. The Shepherds agreed and met without their lawyers present.

The Shepherds claim that during the meeting Altman “did absolutely no negotiations” on their behalf and instead “forced terms desired by [Keros]” on them. Altman and Keros presented the Shepherds with what they called a “draft” agreement that the couple continually “marked-up and revised” over the course of the meeting. Keros again said he would walk away if they didn’t sign, so they did, the Shepherds claim in the suit.

The couple also claim Altman ignored their requests for copies of the documents and then altered the papers after securing their signatures. At that point, Altman and Keros contend the so-called draft documents were binding.

The Shepherds also signed a “contingency” document with Keros regarding an easement dispute the couple had with their neighbor. The couple say that Altman and Keros misrepresented that document, which Keros later used to sue them.

Altman did not return a request for comment. A spokesperson for Elliman said that the firm does not comment on pending litigation.

Representatives for the Shepherds could not be reached for comment.

Link to Article

How Buyers And Sellers Get Screwed

Another reason for the industry to commit to full transparency and the auction method of selling homes – our Code of Ethics doesn’t help much:

Q: I submitted an offer for a buyer client that was near the full listing price and asked the listing broker if any other offers existed. The listing broker said no. The next day the broker called me and told me the property sold to a different buyer. Shouldn’t the broker have told us that there were multiple offers when the other offer came in and given my client the opportunity to modify the offer?

A: This is one of many misconceptions about handling multiple offers. The primary provision in the Code of Ethics related to multiple offers is Standard of Practice 1-15, which says “REALTORS®, in response to inquiries from buyers or cooperating brokers, shall, with the sellers’ approval, disclose the existence of offers on the property.” You asked if there were any existing offers at the time you submitted and the answer was, apparently, no. Nothing in Standard of Practice 1-15 or any other part of the Code requires the listing broker to go back to any or all other buyers who made an offer should one or more additional offers come in after your offer was submitted.

While it might seem that listing brokers should be required to go back to all those other buyers if other offers come in, a seller may choose not to take that action and may choose another direction to negotiate a sale. It may also seem that going back to previous offers would always be in the best interest of a seller. But, from the seller’s perspective, there might be both price and non-price terms of the other offers that are more attractive. The seller might not want to risk that the later, better offer may be withdrawn in the time it could take to reinform the other buyers and allow them to change their offers.

One tip for cooperating brokers in multiple-offer situations is to ask the listing broker about other offers on more than one occasion during the negotiations. It’s no guarantee that you will hit the right time, but it might give you more information for your buyer client in the negotiation on high-demand properties.

Link to Article

Real Estate Tip Line

Our San Diego MLS quietly removed our complaint button recently.  I’m sure they had heavy volume, but they aren’t the realtor police – nobody is.  Hat tip to SM for sending this in:

VANCOUVER – The province is hoping to make it easier for you to report suspected misconduct in the local real estate market by launching a new tool.

A new anonymous tipline has been launched by the Real Estate Council of BC, as part of, what it describes, a way to protect potential homeowners.

“This is a way for people who have information about potential misconduct of real estate agents, that perhaps they’re uncomfortable identifying themselves, they have this as a tool to report information to the council anonymously,” explains Executive Officer Erin Seeley.

The tipline is one of the recommendations made by an Independent Advisory Group two years ago. “The council set up this group as a way to report on the improvements the Real Estate Council can make in overseeing licensees and in protecting the public.”

This new tool allows people to report things like a conflict of interest, failure to disclose information, or even the mishandling of money.

There is a complaints process already in place and Seeley adds the new tool is part of the process currently available to the public.

“It’s anonymous, it’s more accessible with the 1-800 number, and it’s a secure forum,” she says. “And it allows people, regardless of whether they’re a real estate licensee or a consumer, they can use this to report misconduct and not have a fear of reprisal.”

Seeley says just like the current process, all complaints are investigated and reviewed to determine whether a full investigation is required. “If there [are] grounds for misconduct and evidence, we’ll take action as appropriate through the channels of investigating. We have administrative fairness and natural justice as key parts of our process.”

Processes to resolve complaints are available, and if a case warrants it, Seeley says hearings can be held by a tribunal.

“We have financial penalties, significant penalties up to $250,000 for licensees per infraction under the Real Estate Services Act.”

According to Seeley, the council receives a number of complaints and has investigated claims of significant misconduct in the past.

Link to Article

The only recourse around here is to file a complaint with the Association of Realtors, and have the Ethics panel hear your case.

I did file a complaint recently, which meant I had to compile and submit six copies of the evidence. The agent was found guilty, and received the maximum penalty for a first-time offender – a letter in their file for 12 months.

Operation Transparency

This is the fourth installment of my essay on the future of real estate sales.  I’ll send this along to Brad Inman, who is gathering thoughts for a leadership conference at the end of March, so they have my perspective from the street.

In summary:

The unconscious desperation among agents is ripping apart the formal agreement between brokers to share listings.  The environment is going the way of commercial brokers, where exposing listings to other agents is a last resort.

We see it happening – there is the occasional article – but without vigorous intervention by realtors themselves, the MLS will slowly disintegrate and be picked apart by outsiders.

Sadly, the sharing of listings is what is best for sellers, buyers, AND realtors, but the greed and desperation among agents gets in the way.

What Can Be Done?  What Are The Choices?

  1. Individual agents can adopt a full-transparency program, starting with publicly describing the specific services they offer, and their commission rates.  If consumers took the time to educate themselves about the differences between agents, at least they would make better decisions than they do now.  It’s unlikely that this will happen, because agents are lazy and won’t bother, unless forced to do so.
  2. We can hope that N.A.R., C.A.R., big brokerages and other industry titans will address this specific problem, and implement changes to save the MLS and broker cooperation out of a commitment of doing what’s best for consumers.  Probably the least likely of these five to actually happen.
  3. We can have big leadership conferences where outsiders will speculate how the disrupters will pick us apart, piece by piece.
  4. We can wait for the government to intervene.
  5. We can do nothing, and watch the broker cooperation via the MLS – which is the best thing for everyone involved – die a slow but certain death.

We can hope that somebody will find an answer.  But it would have to include ways to eliminate agent shenanigans, invigorate consumers, and be a forward-thinking solution that benefits all.

The inquiry might start with creating a national MLS, or electing a real estate czar, or encouraging agents to keep their word and quit cheating their own customers out of what’s best.

But what if a thing was the answer?

The solution is LIVE AUCTIONS.

We can easily incorporate them into our regular business as the process to select the winning bidder.   All other selection processes used today are subject to the listing agent tilting the table – with a live auction, all participants will be watching, and able to determine the actual winning bidder.

Could there be shill bidders who run up the price?  Yes, but let’s insist that every buyer is represented by a realtor – that way, at least the agent’s reputation is on the line.

Live auctions would keep listing agents and buyer-agents employed, though the fee structure may be in flux.  But our commissions are already under attack, so let’s take a chance that consumers will agree to pay a reasonable fee for these live auctions, and the other additional benefits provided by realtors.

A live auction doesn’t have to be a showy, champagne-filled soiree with a fast-talking auctioneer.  They can be as simple as gathering the buyers around the living room, in a rather informal setting.

I am offering the live-auction strategy to my sellers as the fairest and most effective way to select a buyer, and let the full transparency be the best way to reach top-dollar.

Here’s an example – catch the winning agent’s comments at the 9-minute mark:

What A Realtor Does

Typically, if you want to know what a realtor does to sell your house, you have them over to make a listing presentation in person.  Because of antitrust laws that ‘promote fair competition for the benefit of consumers’, the commission rates charged by realtors are rarely seen in public.

Until the discounters came to town.

They advertise their rate because they want to appeal to the price-shoppers.  Consumers who shop for the lowest rate are attracted to this ploy, and don’t ask enough questions about what they get for the money.

Because the real estate industry refuses to publish any minimum standards, the discounters can get away with statements like, ‘full service for less’.  Today, you can ‘hire’ a realtor for $100 or less – but what do you get, and is it what you want and need?

Let’s start by outlining the levels of service available.

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The Different Types of Realtor Service

Full Service – Expert

This is where you get a long-time veteran realtor – a full-timer who has closed hundreds of sales – to handle every aspect of your transaction.  Any assistants involved have a similar level of experience, and together they produce a smooth, seamless sale at the absolute highest price possible.

Full Service – Trainee

Every agent learns on-the-job.  Consumers deserve to know the differences, but because of the lack of transparency, there is no qualifying of how helpful an agent will be – you are taking a chance.  Agents can claim to be in the Top 1%, and say their assistants are ‘experts’, but there are no official standards.  As a result, team leaders are prone to hiring lower-cost employees with less experience to fill the gaps.  Because it is a fast-paced and complicated business, the trainees struggle to deliver the same results as the real experts.

Limited Service

This is one service that is clearly defined here, because of everything the realtor doesn’t do for you. It is primarily for MLS entry only, where the realtors cash your check, input your listing onto the MLS system and hope you can figure out the rest on your own.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Consumers – and realtors themselves – would be well-served if the real estate industry had a definition of the services provided, and then had every agent publish the specifics of what they do to serve clients.

Zillow does allow agents to list their sales history, but there is no instruction for consumers to properly use the information.  Their agent profiles are full of fluff, with at least half of them promising to deliver your ‘dreams’.

If every realtor published their actual services provided (with fees) and a detailed profile of every team member’s experience, then consumers could make an educated decision about who they are hiring.

Rex And Reality

Somebody needs to say something, so I guess it will be me.

Though I’m still shocked that realtors and their management are willing to stay this quiet, for this long – their silence is deafening.  The disrupters are the only ones doing the talking, and because no one else objects, they are getting away with lies and deceit.  The consumers deserve better.

  1. This guy does what Glenn and the rest of them do – constantly reminds the viewer that the standard commission is 6%.  If you are selling a median priced home (or higher) in Southern California, and think you have to pay 6%, you haven’t looked very hard.  Myself and most other agents are happy to deliver full service for 5% or less.
  2. Rex listings aren’t in the MLS, and they are only making sales with buyers they find themselves.  But the highly-motivated buyers – the ones who pay top dollar – work with an agent.  Why? Because they like the advantages an agent offers, which include convenience and expertise.  Because Rex won’t deal with other agents, it narrows the potential buyer pool.  If your house isn’t being offered to the highly-motivated buyers, then your bidding war won’t be as robust, and you will sell for less than you could have if you would have hired me.
  3. The buyers they do attract are unrepresented, and deal with robots.  The comfort level of those buyers will be lower, and their offers will be too.
  4. It is a fact that buyers who get little or no representation are more likely to fall out of escrow.  It might seem sexy in the beginning to make a deal through a new-fangled disrupter, but only the perfect houses at the perfect price make it through escrow without issues.  Seen many of those lately?
  5. He agreed that lousy agents aren’t going to survive, but good agents will. In reality, the disrupters are offering an alternative to the lousy agent – for consumers who are willing to put up with minimum service with the illusion of saving a buck, plod ahead. Great agents deliver maximum service, which results in top-dollar sales for sellers, and the best houses for the buyers.

The disrupters have one thing in common – they want you to think that their automating of the process will deliver the same results, and make selling homes easier and cheaper.

But it takes an expert salesman to get personally involved with creating a bidding-war environment to cause a top-dollar sale for sellers. You don’t get that with disrupters (or lousy agents) who just want to process your paperwork.

These differences need to be clearly identified so consumers can make an informed choice. Get Good Help!

More to come later – I have to go beat a robot out of a sale!

More Shenanigans in 2018

The basic premise that drives the real-estate-selling industry is that agents ‘cooperate’ with each other, which is code for ‘I’ll share my listings with you, and you share your listings with me’.  We have a written agreement, and subscribe to the strict code of ethics, of course.

But these days, there just aren’t enough sales to go around.

These has always been an undercurrent of pocket listings and off-market deals.  But when the president of one of the largest brokerages in California gets quoted in the L.A. Times like this, it makes you think the whole system is unraveling.

Especially with the promise of vetting the properties, what does he mean?  Just the hot buys?  The easy sales to keep in-house for the new agents to sell? (upon whom the house makes max $$)

The sellers suffer from less exposure, and buyers have fewer choices.  But hey, at least the real-estate-selling business will survive, in some form.

Off-Market Sales

Two things never discussed about off-market sales:

1) Every agent signed an agreement to share their listings with other agents.

2) Nobody reads the forms before signing.

http://www.berkeleyside.com/2017/09/26/sell-east-bay-home-off-market-probably-not-exceptions/

When Barbara Hendrickson’s 90-year-old neighbor needed to sell her Berkeley home, crammed with 40 years’ worth of belongings, Hendrickson, a real estate agent, sold the house for her without putting it on the market.

“She was not up to the task of cleaning out all that stuff,” said Hendrickson, an agent with Red Oak Realty. The off-market sale enabled the neighbor to quickly dispose of the house and move to Baton Rouge to be closer to relatives. The buyers took on the onerous job of clearing out the accumulated furniture and possessions.

In general, selling a house off-market isn’t the best approach, experts say. The California Association of Realtors recommends against it, as do East Bay agents including Hendrickson. But sometimes, as in the case of Hendrickson’s neighbor, there are exceptions.

To be clear, “selling off-market” means not listing the house on the local Multiple Listing Service, and is also described as off-market sales or pocket sales.

(more…)

Realtor-Portal Fundraising

The fundraising has begun for the building of the realtor portal:

https://fundrazr.com/StopZillow-PreLaunchTeam

Greg should disclose the secret weapon mentioned – because if the new website isn’t substantially better than Zillow, then we are wasting our time and money.  His list of features is not impressive, and no one is going to leave Zillow – consumers or agents – unless he has a spectacular idea up his sleeve.

Having our own portal is a good idea and within reach if every agent chips in a few bucks.  Are there enough who care?  Most will assume it is a duplication of the MLS and not really needed.

But the reason we need it is because having our own portal would help create the ultimate club for agents.  Let’s build the portal outside of the N.A.R. and other top-heavy administrative bodies that suck down profits yet provide little if any benefits to agents themselves.

You would think groups like N.A.R., C.A.R., Zillow, big brokerages, etc., provide some structure for the industry, but they don’t. Yes, there are rules, but nobody enforces them.  Brokers who are supposed to be supervising their agents will look the other way if it means making more commissions.

We don’t even need rules – an agent’s reputation among their fellow agents is enough to keep them in line.  The rule most broken is the sharing of listings with fellow agents, but that’s been abused for so long that most agents don’t remember signing that form when they joined the MLS.  We will have to live with single agency (aka dual agency for now), but it is already upon us anyway.

More of the upstart companies are choosing to advertise on radio and TV, and distorting the truth is widespread. If we eliminate all the unnecessary money-grubbing entities, be honest with ourselves and the public about the (no) rules, take the gloves off and fight it out with our fellow agents for the business while cooperating on our own powerful portal, then the best agents would survive – which is ultimately what the consumers deserve.

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