Broker Negligence

Real estate brokers who represent buyers and sellers are required to provide accurate information regarding the property and adhere to honest practices and fiduciary duties during a transaction. The Rossi, Hamerslough, Reischl & Chuck ("RHRC") law firm represents buyers and sellers who have been harmed as a result of real estate broker negligence or breach of fiduciary duties.

Buyers or sellers of residential or commercial property want to protect their investment and ensure smooth transactions. If their investment is put at risk or the integrity of the transaction's questioned because of the conduct of a real estate broker, the attorneys at RHRC can help.

In California, the real estate broker business is heavily regulated by statute, the Department of Real Estate, and case law. A real estate broker's fiduciary duty to his or her client requires the utmost care, integrity, honesty, and loyalty. He or she is hired for his or her professional knowledge and skill and is expected to perform the necessary research and investigation in order to ascertain those important facts that will affect his clients' decisions. The broker has a duty to counsel and advise his or her client regarding the propriety and ramifications of their decisions when purchasing or selling real property.

When brokers fail to perform their professional duties, the real estate lawyers at RHRC will vigorously pursue all remedies on their clients' behalf. Some of the issues RHRC handles are as follows:

  • Non-disclosure
  • Failure to counsel and advise
  • Failure to inspect the property being sold
  • Failure to disclaim or verify information given by the seller to the buyer
  • Misrepresentation of property size or boundary locations
  • Wrongful receipt of a secret profit in a transaction
  • Undisclosed dual agency (representation of both buyer and seller without their consent)
  • Failure to prepare documentation properly
  • Misrepresentations on MLS listings
  • Violations of California Civil Code statutes
  • Violations of the California Department of Real Estate Regulations

Examples of Recent Cases

In Re: Dalton, Corbin v. Century 21 Alpha, et al. (Santa Clara County Superior Court Case #1-03-CV-011268). In a two-week jury trial, successfully prosecuted a nondisclosure case for buyers of residential real property. The sellers of the Morgan Hill property failed to disclose that it was on a septic system, and it was established at trial that the transfer disclosure statement was actually completed by sellers' agents. The jury found against the agents for negligence, negligent misrepresentation, fraud, and breach of fiduciary duty, and the agents were held responsible for all of buyers' damages, attorneys' fees, and costs.

In Re: Smith v. DiNapoli (Santa Clara County Superior Court Case #1-03-CV009914). Represented seller of high-end residential property suitable for subdividing against the real estate broker who acted as a dual agent in the transaction (representing both buyer and seller). The agent failed to properly prepare the contract providing seller would be paid additional compensation upon approval of the lot split. Seller recovered almost $1 million from the broker.

In Re: Michael Morter, et al. v. Thunderbird Realty, et al. (Santa Cruz County Superior Court Case #CV136523). Obtained an arbitration award in excess of $1 million, including attorneys' fees, arising out of a real estate broker's failure to advise and counsel a home buyer of landslide potential in a mountain property.

In Re: Cleckley v. Coldwell Banker, Bergeson, et al. (Santa Clara County Superior Court Case #1-03-CV815421, consolidated with Case #1-03-CV815422). Prosecuted a fraud and rescission claim on behalf of homebuyers against sellers and their real estate agents for failure to disclose past landslides. The firm obtained a confidential settlement on the eve of trial.

In re: Blickman Turkus v. M-F Downtown Sunnyvale, LLC., Mozart Development Company (Santa Clara County Superior Court Case # 1-03-CV-814344). Successfully defended major developer against commission claim purportedly earned for procuring a commercial tenant who, after signing a written Lease, two years later refused to occupy the premises or pay rent. The developer was able to defeat the commission claim by convincing the Trial Court, in two separate Summary Adjudication Motions, that the term "rent commencement" in the Commission Agreement with the broker constituted a condition precedent of payment of the commission and required actual payments of rent by the tenant which had never been paid.

In Re: Sayfie v. Franco (Santa Clara County Superior Court Case #1-02-CV806533). Represented a buyer of a single-family home in San Jose against a real estate agent who acted as a dual agent in the transaction (representing both buyer and seller). The agent marketed and advertised the home as having four income-producing units, although he knew that due to zoning restrictions, the property was illegally zoned for the four rental units. The case settled for the full amount demanded - over $200,000 in lost income from the non-viable rental units.

In Re: Binell v. Greenfield, et al. (Santa Clara County Superior Court Case #CV 788929). Settled a nondisclosure case against the sellers of residential property in the Lexington Basin and their broker. Both sellers and their broker failed to disclose that sellers had improved the property in violation of local ordinances, despite knowing what the ordinances required. Buyers obtained a full settlement, including attorneys' fees.

In Re: Morris v. Taulbee, et al. (Santa Clara County Superior Court Case CV799421). Represented buyers against a seller and a dual agent who failed to disclose drainage and flooding problems. Seller's earlier letter to a neighbor buying a property next door warning him of the problems proved that she was aware of the problems yet failed to disclose them. Obtained an $85,000 settlement for the buyers.

In Re: Dunivin v. Nasmeh, et al. (Santa Clara County Superior Court Case #CV787333). Represented sellers of residential real property in Saratoga. The buyer was a local real estate agent/developer. It was established in discovery that the buyer intended to defraud the sellers. The case settled for full value on the first day of trial.

In Re: Lively v. Heydarian, et al. (El Dorado County Superior Court Case #PC20000236). Represented buyers of a mini-mart/gasoline station who discovered just after escrow closed that sellers had not disclosed that the property was contaminated by gasoline leaks and that they were under state and county orders to monitor the spreading contamination. Successfully rescinded the transaction, obtaining all monies our clients had put into the property.

In Re: Fuller v. John V. Pinto & Associates, Inc., et al. (Santa Clara County Superior Court Case #CV766530, consolidated with #CV767682). Defended a seller against a claim brought by real estate broker suing for a commission, establishing that the realtor had breached his fiduciary duty.

Rossi, Hamerslough, Reischl & Chuck

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