Real Estate E&O Claims Spotlight: Estate Sales

Real estate agents face numerous challenges in their profession, and transactions rarely go as planned. When it comes to estate sales, especially in the wake of the COVID-19 pandemic, the challenges faced by realtors and property sellers have only increased.

When exploring an insurance claim from a recent estate sale in Virginia, the difficulties inherent in estate sales become all too clear. These difficulties can result in expensive E&O insurance claims.

The Claim

An individual working for a prominent realtor in Virginia was selected as the sales agent for a family home (the estate) located in Arlington. Between April and July 2020, the four property co-owners (the claimant and her three siblings) allege that the sales agent violated both the letter and spirit of ethics laws regarding the sale of the estate. There were four major areas of concern:

  1. Failure to Notify & In-House Transaction

Four co-owners comprised the sellers of the estate. The sales agent worked with primarily with one of the co-owners – in this case, the estate trustee — and other members felt as if they did not receive proper guidance or notification during all phases of the sales transaction. In particular, one of the siblings believed the sales agent misrepresented her role as seller AND buyer agent, which they deemed a potential conflict of interest.

  1. Dereliction of Duty

Owners of properties may not always be close enough to the property’s location to be familiar with potential condition issues, and this sometimes results in disclosure issues with the property itself or its contents. In this case, the co-owners were unable to verify the condition of the estate and its contents prior to sale. The sales agent arranged for repairs and handling of family belongings; during this process, some belongings were damaged. The agent also was alleged to have arranged for repairs in excess of the co-owners’ wishes.

  1. Self-Promotion

The sales agent used the estate property to produce a promotional video of her services, and did so without the consent and authorization of the sellers. The costs of video production were passed to the sellers as well, again without consent or authorization.

  1. Improper Representation

The sellers believed that they were misled by the sales agent during the transaction. In particular, potential buyers were represented as a family, when in fact, the brokerless buyer was a property rental professional who intended to make the estate a rental property. This fact was not disclosed to the sellers until closing. Prior knowledge of the true nature of the buyer may have influenced the sellers to not accept a sales offer.

What Went Wrong

 In the case of the Virginia estate sale, the four sibling co-owners believed they were not adequately informed of all the transaction details. They also had legitimate concerns about unethical practices on the part of the sales agent, particularly that of the agent’s nondisclosure of a brokerless buyer and by misrepresenting the nature of the actual buyers. Estate sales are always complicated affairs, as family members are often emotional when it comes to parting ways with the family home. It can be easy for sellers to feel as if they are being taken advantage of, and those feelings in this case were compounded by the travel restrictions imposed by COVID-19.

Interested in PBI Group generating an E&O insurance quote for your real estate agency? Click here.

Real Estate E&O Claims Spotlight: The Costs of Copyright Infringement

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The world’s information is at our fingertips, thanks to the Internet. On the web, it is possible to find literally millions of images, and sometimes these images are used to illustrate websites, business brochures, and advertisements, just to name a few of the many potential uses. Unfortunately, a poor understanding of copyright law has led to problems; unauthorized use of a copyrighted image can lead to legal claims by the artist, potentially costing the copyright violator thousands or even millions of dollars in damages.

Let’s explore an ongoing copyright claim to learn more about how using an image without the artist’s consent or permission can result in an expensive E&O insurance claim.

The Claim

In 2017, a professional photographer and artist created a photographic image of the Columbus, Ohio skyline. When the image was created, the artist applied Copyright Management Information to the image itself via watermark. He also successfully registered the image with the Register of Copyrights, receiving a registration number.

At some point in early January, 2020, a real estate agency in the Columbus, Ohio region used the artist’s copyrighted image without his permission, license, or consent. This unauthorized use runs afoul of The United States Copyright Act as well as the United States Code, Title 17. There is also evidence that the real estate agency removed the watermarked Copyright Management Information applied by the artist prior to their unauthorized use of the image in marketing materials.

What Went Wrong

Under existing copyright law, the artist may be entitled to significant damages, including additional profits from the copyright infringer that is permitted by law depending on the case itself. For example, statutory damages between $30,000 and $150,000 per work infringed are possible if legal action is successful. The higher damage number is possible if the infringement is shown to be willful; in this case, removal of watermarked copyright management information added to the image by the artist suggests the infringement was willful. According to 17 USC 1203(c)(3)(B), the artist is able to recover statutory damages of not less than $2500 or more than $25,000 per violation of the prohibition against alteration or removal of copyright management information. These specific statutory damages may be in addition to the damages discussed above.

The lawsuit is still ongoing. It is expected that the artist will be successful in his claim against the real estate agency.

To protect against the potentially damaging expenses associated with common lawsuits, such as copyright violation or similar, it is imperative that business owners check their insurance carefully. Ensuring that adequate protection and coverage limits under Errors & Omissions (E&O), Commercial Package Policy (CPP), or Cyber Liability policies make sound financial sense, especially in light of the high costs in defense and settlements/judgments associated with legal claims against a business. Real estate agencies and agents manage many moving parts associated with advertising their services, creating websites, showing properties, and conducting sales, which is why agents and agencies alike should review their insurance coverage for adequate protection prior to an incident like this occurring.

Interested in PBI Group generating an E&O insurance quote for your real estate agency? Click here.

Real Estate E&O Claims Spotlight: How Prior Knowledge Can Derail a Claim

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Someone filling out Notice of Lawsuit Form.

When property is in your care, custody, and control, agents are duty-bound to maintain property premises in a safe and hazard-free manner. Failure to do so, such as in cases of neglect, deferred maintenance, or negligence, may result in the property manager/custodian being liable for any injuries caused by hazardous conditions. Typically, insurance covers injury claims resulting from property hazards, but certain exclusions and limitations may apply – especially if the property manager/custodian knew of a hazard and did nothing to mitigate it before an injury occurred. Let’s take a closer look at a situation that resulted in a denial of an E&O claim.

The Claim

In May 2018, a person – the eventual plaintiff in a lawsuit — was visiting a property managed by a real estate brokerage in New Jersey. While on the premises, the woman fell through a hole in a deck structure on the property, severely injuring her foot, back, and neck. Despite medical care and rehabilitation, the injuries eventually resulted in a loss of earning ability, permanent partial disability and disfigurement, and pain and suffering that is expected to continue indefinitely. In October 2018, the injured woman filed a civil action against the real estate brokerage and the property owner. Together, these two entities are the defendants. In the lawsuit, the plaintiff and her attorneys allege that the defendants:

  • Was owner, lessor, lessee, and/or otherwise legally responsible for the care and safety of the property on which the plaintiff received injuries;
  • Were aware of the unsafe condition of the deck structure, and;
  • Failed to inspect the premises for hazards and/or provide barriers to prevent visitors from becoming injured.

The plaintiff sought a judgment of $50,000 plus costs and other financial relief the court deems just. The lawsuit is still pending in New Jersey court.

What Went Wrong

To protect business interests against losses due to the possibility of legal action against it, the defendants in the lawsuit filed an E&O claim with their insurer. Ultimately, the claim was denied by the insurer for two reasons.

First, the claim was denied for a simple technicality, but one that had significant ramifications for the insured brokerage. In November 2018, a process server delivered notice of the lawsuit to the insured’s office. A receptionist at the firm signed for the delivery but neglected to let anyone else at the brokerage know about the service of suit. One year later, service of suit was once again delivered to the insured’s office; it was only then that they tried to report the civil suit to their insurer. The denial was simple; the E&O policy required any insured with knowledge of legal action to report a claim as soon as practicable. The initial delivery by the process server should have triggered a report to the E&O carrier from the insured, and because the insured waited a year – only after the second service of suit – the insurer ruled that this constituted “prior knowledge” of legal action.

Second, the insured had set up an Arch insurance policy sometime after the initial process server delivery. An advantage of the Arch policy is that only claim managers – in this case, executive officers of an insured company – must have knowledge of a legal claim in order to trigger a report to the insurer. In other words, not just any employee of an insured company has a duty to report, only executives. Unfortunately for the insured, the Arch policy was set up after the initial civil action was delivered, and was therefore not covered by the policy. In this case, the retroactive exclusion applies to any insured having knowledge, and no just an executive officer or claim manager having knowledge of the process service.

The major takeaway from this case is that insureds have a duty to report any claims or potential claims to their insurance company promptly. Failure to do so in a timely manner may result in an E&O claim being denied – even one that may have otherwise been covered under insurance policy language.

Interested in PBI Group generating an E&O insurance quote for your real estate agency? Click here.

Real Estate E&O Claims Spotlight: Shady Agent

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In real estate transactions, both buyer and seller have a reasonable expectation of propriety. In other words, both parties expect that the transaction will be free of fraudulent practices. Unfortunately, this is not always the case – greed often compels one of the parties in a transaction to commit fraudulent activity. 

Let’s explore a claim from April, 2019 to learn more about how fraud can result in an expensive E&O insurance claim against those responsible.

The Claim

In February 2019, a real estate agency contracted with an exclusive listing agent for a residential property located in North Carolina. The listing agent was the agent of record and was authorized to serve in a dual agent capacity, representing both seller and buyer. After a short period of time on the market, the agent advised the owner (potential claimant) that he had an interested buyer, but that the asking price of the home needed to be reduced in order to secure a deal. The owner accepted and went under contract with the buyer.

In March 2019, the property closed and was conveyed to the buyer. One day later, a quit claim deeded to another entity, this time a rental company owned by the listing agent and the buyer, who is claimed in the legal dispute as a straw buyer. The discovery of fraud was made by the subsidy program advocate for the tenant currently residing in the property. At no time did the listing agent indicate verbally or in writing that the property was going to be purchased by him and his business partner. 

The potential claimant went on to file a complaint with the North Carolina Real Estate Board as well as initiating an investigation into more than 20 similar transactions conducted/completed with the listing agent. 

What Went Wrong 

The insurer of record to the real estate agency denied the claim filed by the claimant. The reasons for the denial are of several parts, including the reporting period of the policy, the definitions in the policy, the fraud exclusion contained in the policy, and the financial interest exclusion contained within the policy. 

In the claim, the alleged wrongful act occurred outside of the policy period or automatic extended reporting period. Secondly, the policy only applies to wrongful acts arising solely out of professional services rendered by the covered party for others. In the policy definition, wrongful acts are defined as alleged or actual negligent acts or errors or omissions. In this claim, the policy does not respond to intentional acts.

Thirdly, the policy’s fraud exclusion only applies if an insured had direct knowledge or participation in fraudulent conduct. In the claim, the claimant alleged a pattern of fraud, but this has not been supported by third-party investigations at the time of the denial.

Finally, the financial interest exclusion of the insurance policy was not applicable to the case, as the property owner alleged that the agent in question did not disclose to the owner his role as dual agent for both seller and buyer. In fact, this dual agent role was disclosed and is on record. 

It is clear from this claim that all parties in a real estate transaction must carefully understand applicable insurance coverage. An error or omission in a transaction may or may not be covered, depending on the policy language. If an incident should occur – including fraudulent transaction activity, you will want to ensure you have a valid insurance claim.  

The Resolution

Due to the above-mentioned issues, the agent will be liable for his own damages and have to hire his own attorney out of pocket. Whatever damages are awarded after the claim is settled, he will also be responsible for paying out of pocket. While the agent is the one who the claim is being brought against, the realty group must address it as they are the company that is named in the lawsuit. However, if they can prove they were unaware of the misconduct, their insurance policy will cover any involvement they are found liable for. This case is still ongoing, but will most likely be settled out of court as there is no definitive defense for the agent.

Interested in PBI Group generating an E&O insurance quote for your real estate agency? Click here.

Real Estate E&O Claims Spotlight: When the Showing Goes to the Dogs

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There are many cases of bodily injury or property damage occurring during property showings, but most people don’t consider the potential danger of pets during a showing. With over half of all American households having a pet of some kind, it’s important to understand the potential E&O hazards they can present during real estate showings.

Let’s take a look at a claim from earlier this year to see how one miscommunication before a showing can lead to a costly E&O claim.

The Claim

On May 1, 2019, the Realtor entered the Property with a Prospective Buyer, which had been listed for sale. Prior to this visit, the Listing Agent had provided the Realtor with the combination to a lock at the Property and stated that it was ready to be shown. When they entered, they were surprised by a husky dog roaming free throughout the Property, as neither the Seller nor the Listing Agent had communicated that there would be a dog present in the house. The energetic dog jumped at the Realtor, striking her in the head and face and causing a number of injuries including a fractured nose, chipped teeth, and a concussion. The Prospective Buyer recorded a video of this incident.

The Realtor finished the showing and notified the Listing Agent about the incident, but started to exhibit worsening symptoms as time went on, including headache, facial pain, nausea, dizziness, difficulty breathing, and memory loss. A hospital visit on May 3, 2019 diagnosed her with facial contusion and a closed head injury. A second visit to a different hospital on June 3, 2019 found her diagnosed with a concussion as well as a number of additional conditions. Per the physician’s recommendation, the Realtor underwent a septoplasty and nasal fracture repair at another facility on August 6, 2019.

The Realtor’s most recent visit to her doctor occurred on September 5, 2019. Though she had recovered from her surgeries without any major complications, she still experienced issues including pain, numbness, and memory loss.

The Realtor’s medical costs totaled $50,824.71. On November 19, 2019, her attorney filed a claim with the Brokerage, requesting a $95,000 settlement.

What Went Wrong

The Property Owner, the Listing Agent, and the Supervising Broker all had a responsibility to maintain the premises while providing safe access to the Realtor and potential buyers. The Listing Agent communicated that the Property was “ready to show” and provided the lock combination, but did not communicate that a potentially aggressive dog was on the premises. The Property Owner also failed to control and restrain the dog, despite knowing that the Property would be shown.

This may not be the type of claim that immediately comes to mind when you think of potential E&O claims in real estate, but they absolutely can happen, and they can be very costly. Because a realtor was injured while working, you may expect this to be considered a workers’ compensation claim. However, because this injury arose from negligence on the part of the Listing Agent, Property Owner, and Supervising Broker, this falls under E&O, not workers’ compensation. Make sure to carefully check and understand your insurance coverage. If an incident happens, you will want to be covered.

Interested in PBI Group generating an E&O insurance quote for your real estate agency? Click here.

Real Estate E&O Claims Spotlight: Be Aware of Fair Housing Testers

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Potential renters and buyers are not always what they appear to be. Fair Housing Testers are individuals who pose as prospective clients in order to investigate potential discrimination in housing, particularly as it pertains to the Fair Housing Act, which prohibits denying housing based on race, color, national origin, ancestry, religion, sex, sexual orientation, disability, family status, or use of public assistance.

If a Fair Housing Tester uncovers evidence of discrimination, this could lead to a very costly claim for the property manager or brokerage. Let’s take a look at one of our recent claims relating to this subject.

The Claim

In May 2019, a fair housing tester (referred to as “Tester”) and father of two found an advertisement for a rental of one of the Properties. One key statement in the advertisement was: “…great for a single person or a couple… This property has a restriction of no one under 18.”

Because this statement was indicative of a violation of the Fair Housing Act, the Tester started investigating further. He confirmed that the Property was not located in a community that was listed as a 55-and-over community.

The Tester then posed as a potential renter and inquired over the phone about whether the Property was available. After the Listing Agent confirmed that the property was available, the Tester brought up the listing and asked whether families with children could rent the Property. The Listing Agent stated that:

  1. The Property is not in a 55-and-over-community,
  2. The Association does not allow residents under the age of 18, and
  3. Children were permitted to visit for up to seven days at a time.

The Listing Agent then mentioned that another residence in the same building was available for rent, with different lease terms. However, when prompted, he confirmed that children could not reside at this second property because of the Association’s policies.

As a result of this exchange, the Tester filed a lawsuit against the Real Estate Agency on August 27, 2019, citing a violation of the Fair Housing Act as well as emotional distress and other damages. He asks that the Agency award punitive and compensatory damages for the emotional distress and insult injury caused by the discrimination, as well as the Tester’s costs, attorney fees, and any further relief the Court deems just and proper.

Lessons to Learn from This Claim

Unfortunately, every real estate agent and broker does need to be prepared for the fact that their client could be a fair housing or another form of tester. Though this is not a common occurrence, it is something that can and does happen, and being found guilty of violations could lead to expensive claims on your end. It is absolutely crucial that you do not engage in discriminatory housing practices, or use language in listings, postings, or other communications that could be indicative of discrimination.

Interested in PBI Group generating an E&O insurance quote for your real estate agency? Click here.

Real Estate E&O Claims Spotlight: Beware of HOA Bylaw Changes Not Allowing Short-Term Rentals

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In the age of Airbnb and other home sharing services, it’s now easier (and more appealing) than ever for homeowners to rent out their property for an additional income. However, no homeowner should assume that they can rent their property out with no strings attached, and no real estate agent should provide information to potential buyers that they cannot guarantee is factual.

Let’s take a look at a recent claim, in which poor communication between a homeowners association officer and a listing agent led to an unfortunate situation.

The Claim

This claim started off as a simple real estate transaction. The Listing Agent listed the Property and represented the Sellers, while the Buyers had their own representation. During the contract period, the Buyers clearly stated that they had plans to use the Property as a short-term rental, asked for assurance that this would be permitted before closing. The Seller did not know the answer to this inquiry, so the Listing Agent and her team reached out to the Property’s homeowners association (HOA) via email, phone, and website research.

On May 20, 2019, an officer at the HOA, provided and written and signed statement that the HOA community did not have any restrictions on short-term rentals. On May 22, the officer clarified that there were no restrictions on long and short-term rentals, and provided a link to the HOA’s governing documents. The Listing Agent and her team subsequently shared this with the Buyers and their agents, who closed on the Property.

However, after closing, a neighbor informed the Buyers (now owners of the Property) that there had been a recent amendment passed in the association’s bylaws that prohibited short-term rentals. Shortly afterward, the HOA officer reached out to the Buyers’ Agents by phone and left a voicemail stating that he had made a mistake in informing them that short-term rentals were permitted in the community.

As a result of this circumstance, the Buyers are not happy and seek to take action against the HOA, and potentially the listing real estate brokerage as well.

Lessons to Take from the Claim

In this claim, the HOA representative was at fault for failing to disclose this amendment to the bylaws. However, the Buyers are also looking to take action against the Listing Agent and her brokerage, even though the Listing Agent only passed along information from the HOA. This is an example of a claims scenario for listing agents and brokerages to be aware of. We are seeing a trend of more claims around HOA and COA assessments and rules. Real Estate agents can be brought into these claims even if they were not directly at fault.  Never pass along information regarding a property and its requirements that you are not completely sure is factually accurate, and continue to communicate with all involved parties to stay aware of changes.

Interested in PBI Group generating an E&O insurance quote for your real estate agency? Click here.

Real Estate E&O Claims Spotlight: Lost, Stolen, or Damaged Items

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It’s not uncommon for the owner of a property to not be around when their home is shown to potential buyers. Under the supervision of a real estate agent (or several), potential buyers can look around the home and get a good feel for the floor plan, and the agent will be there to answer any questions about the property.

Many property owners choose to put away personal items for open houses and home viewings. However, even with precautions in place, opening a home to the public does have its risks, and it is also not uncommon for personal items to disappear during or after viewings. Some of the most commonly taken items include jewelry, prescription medications, small electronics, decorative pieces, designer accessories, and money.

We recently saw a claim in which many valuable personal items disappeared after a showing took place at a property. Let’s take a look at the claim, and what real estate agents should know about their liability in these situations.

The Claim, Explained

On May 3, 2019, a showing took place at the Seller’s home (“The Property”), in which both the Listing Agent and the Buyer’s Agent showed it to the Client. After the showing, the Seller noticed that several of his personal items had gone missing, with a combined value of over $10,000.

The Seller filed a report with his county’s police department, and requested that they pull the street video to see if anyone other than the Listing Agent and the Potential Buyer were present at the Property that day. The Seller did have video cameras in his home, but his surveillance was not able to turn up any footage of the items being taken or any evidence other than still images that established the presence of the Listing Agent and the Potential Buyer in his home on that date. The Seller did not have receipts for his missing items, but did have boxes for the majority of them.

No conclusion has been formed about the objects’ whereabouts; it is unclear whether they were taken by the agents, the potential buyers, or if there is another, alternate explanation. However, regardless of what happened, the objects did disappear and the Seller did file an E&O claim against the Firm involved, along with a police report.

Key Takeaways from this Claim

It goes without saying that agents should not take sellers’ personal belongings during showings. However, it is important to understand that agents are liable for any lost or damaged property during showings. It does not matter how it happened. Even if the agent is in no way personally responsible, they will be held liable in the claims process.

At the end of the day, potential buyers are free to roam throughout the property during their showing, to get a feel for the floor plan and to take a closer look at the features that have interested them. No real estate agent should have to closely tail their clients; this is only likely to create an unpleasant experience for the potential buyers. However, there is a middle ground between watching buyers like a hawk and leaving them completely free to their own devices. It is important for agents to be aware of who is in the home with them and what they are doing, and to keep a lookout for what is happening. Odds are, the buyers are just taking a second look around, but if something does go missing, the agent is the one who will be liable. If this happens during one of your showings, talk to a lawyer and your insurance agent.

If a property is damaged during a showing, this would be considered an E&O “lockbox” claim. Keep in mind that not every errors & omissions policy contains this language, so this is not a guaranteed coverage. Check your policy carefully; don’t just assume you will be covered.

Interested in PBI Group generating an E&O insurance quote for your real estate agency? Click here.

Real Estate E&O Claims Spotlight: Disclosures in Real Estate Transactions

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While real estate agents have many responsibilities, there are some things that should not be addressed by agents during the buying and selling process, as they can lead to costly claims and lawsuits. Disclosures or representations made by the agent based on their own experience or knowledge of a property, and not taken directly from the seller is a particularly important example.

Let’s take a look at one of our recent claims for an example of improperly-handled disclosures in real estate transactions.

The Claim

In the late spring of 2017, the Buyers purchased their first home (“the Property”) from the Listing Agent (a longtime friend of the Seller and her family), located in South Carolina. Prior to the purchase, the Listing Agent informed the Buyers that the Property, based on her own personal knowledge, had never been affected by flood waters in the past. The Buyers and the Buyer’s Agent further asked through their agent whether the home had ever been flooded, and the Listing Agent stated that the home had never been flooded, even during notable storms such as Hurricane Hugo and the 1,000-year flood.

In September of 2017, Hurricane Irma struck. The Property experienced significant damage; in addition to flooding, the Property’s HVAC unit was destroyed, mold and sewage affected the residence, and the Property’s crawlspace received additional damage.

Since Hurricane Irma, the Buyers have learned from neighbors who have resided near the Property for years that the Property had been significantly affected by water damage in the past. The Property was damaged during Hurricane Hugo, Hurricane Matthew, and the 1,000-year flood of 2016.

In addition, the Listing Agent, who acknowledged during the selling process that she has had a close and long-lasting personal relationship with the Seller and her family and a considerable knowledge about the Property, represented that the Property was built in 1969 by the Seller’s family and had been cared for and maintained in its original condition until the Buyers purchased it. However, the Property underwent extensive renovations in 1990 after the aforementioned flood damage, to the point of nearly being rebuilt altogether. The Buyers were told that the Property had never experienced flood damage, and did not expect that the Property would have undergone this level of reconstruction.

The Buyers’ total damages from the situation exceeded $100,000, but they have offered to settle for $75,000.

Lessons from the Claim

In this claim, the Listing Agent knew the Seller and her family well, and felt that she could make certain representations about the property from her own personal knowledge/experience. Failure to disclose water damage is indeed one of the most frequent causes of errors & omissions (E&O) claims in the real estate process, but though water damage had occurred and rebuilding had been done, the agent should not have been the one to provide any affirmations to the Buyers.  Even if a listing agent knows the property and the seller well, as in this claim, it’s important that agents not make their own representations about the condition or history of the property that aren’t directly provided by the seller.

Interested in PBI Group generating an E&O insurance quote for your real estate agency? Click here.

Real Estate E&O Claims Spotlight: Wholesaling: What Can Go Wrong?

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Purchasing homes for the purpose of increasing their value and reselling them at a profit, also referred to as wholesale, is a popular practice that can be beneficial for both the buyer and the real estate agent involved in the transaction. However, if it is not done properly, with complete communication and transparency between all the involved parties, it could lead to incredibly costly and time-consuming claims for real estate agents and their companies. Let’s take a look at one of our recent claims to see what can go wrong in this process and what agents should be mindful of.

The Claim

In May of 2018, an individual (“The Buyer”) began communicating with a real estate agent and property manager (“The Selling Agent”) in an effort to find homes to renovate and resell. After viewing several homes, the Investor opted to purchase a single-family home (“the Property”) for $52,000 on June 13, 2018, after being informed by the Selling Agent that purchasing, renovating, and reselling this Property would yield a potential profit margin of $60,000.

On June 19, 2018, the Buyer and the Selling Agent entered into a contract surrounding their plans for the home. This contract stated that:

  • The Buyer would be responsible for providing money to purchase the Property, to provide $61,500 in “rehabilitation money” to renovate the Property, and to sign an exclusive listing agreement with the Selling Agent for the home’s future sale.
  • The Project Manager would assist in purchasing the Property,  handle all rehabilitation work to prepare the property for resale, to have the Property ready for sale in no more than 100 days from the date of purchase, to provide the Buyer with receipts for bookkeeping purposes, and to market and sell the Property for a flat commission of $1,000.
  • Upon sale of the Property, the Buyer agreed to provide the Selling Agent 50% of the net profit within 2 business days of closing.

Though the home was purchased and the Buyer provided the Selling Agent with installment payments totalling $58,545 for property renovations (upon Selling Agent’s request), no rehabilitation was performed at the Property, and the Selling Agent did not pull any permits for future renovations. As a result of this, the Selling Agent did not have the property ready for sale in 100 days or under, and did not market and list the property. The Selling Agent also did not produce any receipts for the Buyer.

In addition, though the Buyer provided the Selling Agent with money to renovate the Property, it was not used for that purpose. The Selling Agent converted the money for her own use, and has not refunded the Buyer for the expense, even though the money was not used for its intended purpose.

As a result of this situation, the Buyer has filed a complaint against the Selling Agent as well as her real estate brokerage firm (“The Firm”) and its two brokers-in-charge (“The Brokers”) for failing to adequately supervise the Selling Agent in her transactions.

What Went Wrong?

The Buyer and the Selling Agent had a legally binding agreement. While the Buyer followed through with what was required of him, the Selling Agent did not. The Buyer provided the Selling Agent with money, but she did not get the permits for renovations, did not handle any rehabilitation of the Property, and did not list it and sell it within the agreed-upon period. As a result, the Buyer has lost money, resources, and time, and is now seeking damages from the Selling Agent as well as The Firm and The Brokers.

When engaging with clients in the wholesale process, it is crucial that agents communicate with their clients and are completely informed on what is expected of them and when it is expected to be completed. It was never made clear what happened to make the Selling Agent fail to obtain permits, initiate renovations, and re-sell the Property, but because the Selling Agent had a legally binding contract with the Buyer, the Selling Agent and her company are now on the bad side of a claim.

Interested in PBI Group generating an E&O insurance quote for your real estate agency? Click here.

Real Estate E&O Claims Spotlight: Misrepresentation in the Buying Process

Real Estate E&O Insurance

What does a misrepresentation claim look like in the real world, and what kind of consequences does it have for an agent? Let’s take a look at one of our recent claims.

The buyer, represented by a real estate agent, entered into a Residential Condo Real Estate Agreement with the seller to purchase a property. This property was purchased for $241,000, with the understanding that it would not undergo any special HOA assessments.

However, just four months after the transaction, the buyers were notified of an impending $32,867.14 special assessment, and were informed that payments were to begin in two weeks. The association had taken out a $1.38 million loan for renovations, and this assessment and its associated payments were a pro-rata share.

The buyer’s agent had a duty to disclose these imminent assessments and what they would entail for the buyers. The agent failed to inform them of these planned assessments and renovations, one of which being repairs to property sidings. Specifically, he had an affirmative duty to disclose “material facts known by the buyers’ agent and not apparent or readily ascertainable to a party.” The buyer’s agent instead represented that the siding repairs had been paid for already.

The sellers also did not disclose the planned renovations and assessments. They represented, “Seller has no notice of any liens or assessments to be levied against the Property, including but not limited to liens or assessments to be levied by the HOA.” In the Seller’s Property Disclosure statement, they stated that the status of any pending or proposed assessments was “unknown”.

Neither the sellers nor the buyer’s agent made any attempt to correct this misrepresentation, though the sellers were contractually obligated to notify the buyers in a timely manner if they received notice of any forthcoming event or condition that would make previously disclosed information misleading or factually incorrect.

As a result of this situation, the buyers filed claims for misrepresentation against both the sellers and the agent. The buyers have requested a settlement of $35,000. If they do not accept, the buyer’s attorney will file a formal claim for damages.

Interested in PBI Group generating an E&O insurance quote for your real estate agency? Click here.

Real Estate E&O Claims Spotlight: Disclosure Disaster

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The Facts:

Mrs. Johnson, an agent with ABC Realty, was hired to list a bank-owned, commercial property. She heard the previous owners, a mechanic shop, had abandoned the property and left it in bad shape. When she arrived at
the property, she could clearly see used motor oil had been dumped inside the structure and in several areas outside. Concerned about the potential environmental impact, she requested a copy of a recent assessment report conducted by the bank that owned the property. The bank agreed to send her the report only after she signed a non-disclosure agreement and agreed that the information contained in the report could not be relied on as fact. Upon receiving the report, Mrs. Johnson, worried about her own E&O regarding disclosing the condition of the property to potential buyers, sent the report to the local municipality to get their opinion. The municipality
inspected the property and determined there was no significant environmental impact regarding the spilled motor oil. However, what Mrs. Johnson did not anticipate was her act of sharing the report with the
municipality would also trigger a letter to the bank with the findings of the municipality’s assessment.

The Result:
The bank filed suit against Mrs. Johnson claiming she wrongfully disclosed their assessment report to a third party; clearly violating her signed non-disclosure agreement. Mrs. Johnson and her E&O insurance company mutually agreed to settle out of court ultimately paying a total of $50,000 in damages to the bank.

Risk Factor #1:

Mrs. Johnson should have advised potential buyers that since the property
was previously used as a mechanic shop, they should obtain an environmental impact assessment report for the property.

Risk Factor #2 :

Because Mrs. Johnson signed a non-disclosure agreement with the bank,
she should not have sent a copy of the report to the local municipality which violated the terms of the non-disclosure agreement.

Interested in PBI Group generating an E&O insurance quote for your real estate agency? Click here.

* Based on risk management information provided by: Victor O. Schinnerer & Company, Inc.

Real Estate E&O Claims Spotlight: Beware of Representing Your Family Members

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A spotlight on a claim against a real estate agent who represented his sister in the sale of the sister’s house where the buyer claimed the sister and the agent conspired to not disclose flooding events.


Fact Scenario:
An agent represented his sister as the seller of a residential real estate property. The sister filled out a residential real property disclosure form that was required in the jurisdiction. The purpose of the form was to provide prospective buyers with information about material defects in the property. The agent did not help the sister fill out the form other than to say “answer all of the questions on the form and disclose all material defects that you are aware of.” The sister answered “yes” that she was aware of flooding problems in the basement and specifically disclosed that there had been “one flooding event in the basement two years ago”in the ten years she lived in the home. The buyer did not hire a home inspector. The buyer experienced three flooding events within six months of purchasing the home. A neighbor told the buyer and later testified that in the past few years it floods a lot in the area due to increased development of homes and structures. Buyer filed a lawsuit against the agent and the sister alleging in part that the agent and his sister fraudulently conspired to not disclose additional flooding events. The buyer alleged $100,000 in damages for repairs to protect the property from future flooding events.


Litigation & Result:
The sister testified that she was only aware of one flooding event. The agent testified that he was not aware of any flooding events and relied upon his sister to fill out the form correctly. The agent filed a motion for summary judgment on the issue that there is no proof that the agent had any knowledge of the additional flooding events. The judge denied the motion for summary judgment on the basis that there were facts in dispute on whether there might have been additional flooding events and that it is possible to impute knowledge to the agent due to the brother/sister relationship. Worried about a jury finding that a brother and sister may have conspired based upon their family relationship, the agent went to mediation and settled the matter. The agent agreed to pay $40,000. The sister agreed to pay $5,000 as she had no insurance coverage and very few assets. The real estate agent also incurred $45,000 in attorney’s fees for his defense.

Best Risk Management Practices to Prevent Claim:
Agents need to be extremely careful representing family members in that knowledge can be imputed to the agent. It is best to refer the matter to another agent to take the lead on the transaction.

Interested in PBI Group generating an E&O insurance quote for your real estate agency? Click here.

*Hanover Insurance

Lead Paint Exposure: Errors And Omissions Risk For Real Estate Agents

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When a family with a two-year-old boy moved into a house that was more than 100 years old, they had no idea that the house was covered in lead-based paint. The reason they were unaware of this was because the real estate agent never informed them of the contamination when they purchased the house.

Seventeen months after moving in, the child was diagnosed with lead poisoning.

The home’s seller had notified the agent of the presence of lead paint when the house first went on the market. The agent disclosed the information to a previous potential buyer, who later backed out of the sale after reviewing the lead paint inspection results. When the second buyers, the family with the little boy, made an offer on the house, the agent withheld the lead paint report from the new buyers, who bought the home in 2014.

Recently, the 73-year-old Niagara County, New York, real estate agent pled guilty in U.S. District Court to failing to disclose an inspection report, which disclosed the lead paint. She was fined $1,000 and ordered to pay restitution of $53,326.

The buyers have also sued for civil damages, naming the agent and the seller for damages equaling the $132,000 sale price, plus triple damages for violating the law, and general negligence. Thomas J. Prohaska “Lockport couple sues real estate agent, home seller over lead poisoning” www.buffalonews.com (Apr. 13, 2018).

Interested in PBI Group generating an E&O insurance quote for your real estate agency? Click here.

Hanover Insurance Group

Real Estate Fraud And The Fiduciary Responsibilities Of Real Estate Agents

blankA Hazleton, Pennsylvania realtor could serve up to ten years in prison after pleading guilty to conspiracy to commit wire fraud. The realtor was arrested in Florida after fleeing there to avoid prosecution.

The realtor preyed on mostly Spanish-speaking, first-time homebuyers, telling them he was authorized to sell to them homes that were vacant or were in foreclosure. The victims agreed to buy the homes and paid the realtor, as well as other parties, for what the victims believed to be their new homes. In fact, the realtor was not authorized to sell the homes, and the fraud began to unravel when the victims began receiving eviction notices from the true owners.

Many of the victims have filed a federal lawsuit seeking civil damages against the realtor and many of the realty companies with which he was associated. James Halpin “Real estate agent admits to scam”    standardspeaker.com (May 26, 2017).

Commentary
The realtor-client relationship is that of a fiduciary. The realtor owes the duties of loyalty, honesty, prudence, full disclosure, confidentiality, good faith, reasonable care and diligence, and accounting.

Obviously, the real estate agent in the case above did not adhere to his fiduciary duties, and his unsuspecting clients suffered for it, as well as the real property owners.

Be aware of the types of real estate fraud that might be perpetrated on your clients:

  • Foreclosure rescue companies that convince distressed homeowners to “temporarily” transfer title or “leaseback” their own home to obtain relief.
  • Mortgage elimination schemes involving “loopholes” to help homeowners eliminate mortgages within an unreasonably short time.
  • Home improvement fraud committed by unscrupulous realtors who obtain a loan in the name of fictitious people or previous clients.
  • Equity skimming: where a buyer convinces a seller to relist the house at twice its true value. The buyer gets a larger mortgage, pays seller the original list price, and skips with rest of mortgage money, leaving the house to go into foreclosure.
  • Illegal flipping: flipping for profit is fine, but flipping for a price well above appraised value is not.
  • Equity fraud happens when crooks take stolen personal information and use it to obtain fraudulent loans.
  • Fraudulent loan origination happens when realtors help unqualified buyers get mortgages they are unable to pay in exchange for a larger sales commission.
  • Predatory lending and aggressive sales pressure: beware of “no money down” or “no credit check” schemes, which usually prey on the elderly, the unsophisticated, or those who are desperate.

Protect your clients from these scams by knowing your market, the true property values, and your client’s needs and motivations. Keep a watchful eye on how everyone involved in the transaction performs his or her job.

Interested in PBI Group generating an E&O insurance quote for your real estate agency? Click here.

Hanover Insurance Group

Dual Agency on Agricultural Land Deal proves to be Risky Business

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Land for Sale

A spotlight on a claim against a real estate agent who acted as a dual agent for both the seller and the buyer of 1000 acres of agricultural land for $10 million dollars ($10,000 per acre).

Fact Scenario:

Prior to the sale, the seller told the agent that the property line was his fence surrounding all 1000 acres. The agent relayed that information to the buyer. The buyer never ordered a survey despite being told to do so by the agent. None of these communications were in writing.

After the sale of the land, the buyer began planting orange trees within the fence lines surrounding the property for his business. Soon after the buyer starting planting, a neighbor to the north complained that the buyer was planting on 100 acres of his property that was within the fence boundary.

The buyer refused to stop planting and continued to develop the disputed property. The neighbor filed a lawsuit against the buyer to quiet title and for trespass. The buyer and the seller filed cross complaints against each other and the agent and his brokerage.

The buyer said he was told that the property line was the fence. The seller said he never told the agent that the property line was the fence. Both the buyer and the seller independently accused the agent of not looking out for their respective interests to help facilitate the sale and earn both commissions for himself.

In addition, the damages for the buyer were not just for the potential loss of 100 acres, they also included the lost revenue for the crop planted on the disputed property line. The buyer claimed that the combination of lost property and revenue was two times the original purchase price per acre. The lack of documentation and the $2 million dollars in damages made the case difficult to settle and very expensive for all parties to defend.

Result:

Ultimately, after a bench trial, the court found that the disputed property belonged to the neighbor. The court noted that the neighbor had been paying taxes on the disputed land.

However, the court split the buyer’s damages three ways ($666K each) between the agent, the seller and the buyer. The judge found the seller at fault for not being clear about the property line in light of his fence on his neighbor’s property, the buyer at fault for not purchasing a survey and the agent for not documenting all communications about the property line and survey.

Best Risk Management Practices:

In cases of dual agency, an agent has duties to both the seller and the buyer. It is incumbent upon an agent to thoroughly document all communications. Any doubts as to what was communicated to the parties will be construed against the agent.

Interested in PBI Group generating an E&O insurance quote for your real estate agency? Click here.

*Charlton-Perrin, Gawain, “Real Estate Agent Claim Spotlight: Helping Real Estate Professionals Manage Their Claim Exposures,” Hanover Insurance Group, November 2017.

The Pitfalls of Dual Agency and Bugs

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A recent residential transaction resulted is a substantial claim being paid because of an undisclosed termite infestation. Our insured was both the listing and selling agent, so when things went wrong there was no one else to look to for a defense.

When the agent listed the property, the sellers signed a disclosure indicating no past termite damage or active infestation. That being the case, the sellers ordered and received a termite inspection report. The report indicated active termites and the seller took the least costly steps to eliminate the termites. The agent received a copy of the report and reviewed the details provided. Unfortunately the agent did not understand all of the details in the report, or she would have realized the severity of the termite infestation.

After closing the buyers found extensive termite damage and active infestation. Estimates for repair exceed 50% of the value of the home, which meant that according to local ordinance, the house had to be torn down and rebuilt in compliance with current building code. The buyers claim that they received a copy of the invoice for the termite inspection but not a copy of the report. The buyers allege that the report indicated active infestation and that the agent was aware of this fact.

There are a few reasons why this transaction resulted in a substantial E&O claim. First, the agent did not question the details of the termite inspection. If she had, she would have recognized the severity of the termite problem. Second, the agent failed to provide a copy of the termite inspection report to the buyers and document delivery of the report.

The resulting claim ended up costing in excess of $350,000 in damages and attorneys fees.

Interested in PBI Group generating an E&O insurance quote for your real estate agency? Click here.

Beware of Greedy Buyer Clients Who Want The Furniture

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A spotlight on a PBI Group and Hanover Insurance claim against two real estate agents involving greedy buyers who wanted to keep staging furniture used by seller to help sell the house.

Fact Scenario:
An agent representing the seller of a residential real estate property hired a staging agent to place furniture in the house to help make the property look more marketable during the listing period. A buyer couple agreed to purchase the house without any of the staged furniture included in the
sale.The closing was set for 10 a.m. and buyers were to legally gain possession at 2 p.m. the same day. On the day of the closing, the staging agent planned to remove the furniture once the sale closed and prior to buyers taking possession. The buyers’ agent gave the keys to the buyers at
the 10 a.m. closing prior to the buyers legally having the right to possession. The staging agent arrived prior to 2 p.m. to remove the property. However, the buyers had already physically taken possession and refused to let the staging agent enter the property to remove the furniture. The staging agent later filed a lawsuit against the buyers and both real estate agents requesting damages for the value of the furniture retained by the buyers, punitive damages, fees and costs.

Can a real estate agent be legally liable for property at a residence not under the agent’s control? Or does a real estate agent have a duty to
third parties to a transaction?

Result:
First, the buyers did not have a legal right to the furniture. As to the real estate agents, while there were few cases on point, there was a concern that the seller’s agent had contracted with the staging agent and owed a duty to have the property returned to the agent. In addition, the buyers’ agent had a duty not to provide the keys to the residence prior to legal possession. After discovery, the parties went to mediation and settled the matter. The buyer agreed to return the property to the staging agent and pay $10,000. The buyers’ agent agreed to pay $25,000. The seller’s agent agreed to pay $10,000. Both real estate agents also incurred attorney’s fees in their defense of $30-40,000 each.

Best Risk Management Practices to Prevent Claim:
Both agents needed to be more careful in the removal of the staged furniture and the taking of possession by the buyers. They were no doubt
shocked that the buyers would be so greedy as to try to retain property for which they were not entitled. However, it is crucial for agents to strictly adhere to the right to possession language.

Interested in PBI Group generating an E&O insurance quote for your real estate agency? Click here.

*Charlton-Perrin, Gawain, “Real Estate Agent Claim Spotlight: Helping Real Estate Professionals Manage Their Claim Exposures,” Hanover Insurance Group, June 2017.

Not in my house.

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When neighbors noticed unusual activity at a recently-sold home, officers were called. They found two people engaged in sexual activity. The woman claimed to be the new owner of the house and said the man was her husband. When asked for identification, police were led by the couple to their car, which smelled of marijuana. A subsequent search turned up a glass pipe and drugs. However, the investigation then took a surprising turn.
The woman was, in fact, the real estate agent who had, the day before, sold the house to new owners. She had met the unidentified man at the home for an evening rendezvous. The new homeowners, not impressed with the realtor’s late-night showing, are pressing charges for criminal trespass. Jonathan Martinez “Real estate agent accused of hooking up with a man inside home she sold” www.click2houston.com. (Aug. 22, 2016).

Commentary
The real estate agent in the above matter faces criminal trespassing, as well as breaking and entering charges. Having access to a house for professional reasons does not mean you have the right to be in the house for personal reasons. Whether this agent faces jail time will depend on whether the district attorney wants to press charges, but there is definitely a reason to do so, especially in light of the possible drug possession charges.

Even if the home was not sold, her being in the home for personal reasons; bringing a third-party to the home of a seller; or other activities beyond the scope of performing a home sale/purchase transaction can lead to liability, especially if the home is devalued because of the agent’s acts. Agents should never show or be in a home unless the purpose is to facilitate the sale/purchase of the home. Agents representing sellers must make sure they are aware of any showing, not only to keep their clients in the loop, but also to protect themselves against any claims that they did not meet their fiduciary obligations to show the home or that the showings were for some purpose other than selling the home.

*Hanover Insurance Group, February  2017.

Agents are Targets

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Unfortunately, in today’s litigious society, lawsuits and grievances against real estate agents are very common. Real estate agents are frequent Targets for lawsuits. A common lawsuit scenario involves a buyer
of property suing the seller and the seller’s agent for failure to disclose defects in the property. In some cases, the buyer also sues his or her own agent to the transaction. The lawsuit alleges not just negligence, but also alleges that the seller and the agent conspired to keep defects hidden to facilitate the sale at a higher price and earn a higher commission. The buyer may also file a disciplinary grievance against the agent. The grievance threatens not just monetary risk for the agent, but the risk of also losing their professional license. The agent may be forced to defend him or herself in two forums simultaneously.

Most times the lawsuit and grievance are highly defensible. Typically, there was absolutely no collusion or conspiracy with the seller to fail to disclose defects existing on the property. The agent likely had no knowledge of any hidden undisclosed defects. At best, the seller may be at fault. Nevertheless, a public lawsuit alleging fraud and conspiracy by the agent is unsettling at best for the accused agent. Reputation is extremely
important in a referral business like real estate brokerage. In addition, defending lawsuits is expensive and time consuming for the agent.
Every day working with defense counsel, reviewing documents and providing testimony is another day lost from practicing as a real
estate agent.

Check out some best practices to avoid being sued.

*McCune, Daniel R., Perdue, Kimberly and Charlton-Perrin, Gawain, “Top Ten Tips for Real Estate Agents to Avoid Getting Sued,” Hanover Insurance Group, August 2016.