IREM REPORT - National Association of Realtors

Transcription

2009 Legal Scan:
Legal Issues Facing
Real-Estate Professionals
NATIONAL ASSOCIATION OF REALTORS®
TABLE OF CONTENTS
Page
2009 Legal Scan Introduction and Summary.............................................................. 1
I.
AGENCY ISSUES REMAIN THE TOP AREA OF CONCERN.......................... 2
A. State Legislatures and Real-Estate Commissions Have Adopted a
Variety of New Provisions Relating to Agency Relationships ..................... 2
B. Breach of Fiduciary Duty Continues to Be a Common Source of
Licensee Liability ............................................................................................. 4
C. Dual Agency Remains an Area Requiring Training ...................................... 7
D. Agency Disclosure Is an Important—But Sometimes Overlooked—
Area................................................................................................................... 9
E. Buyer Representation Is Not Well Understood by Licensees or Well
Explained to Clients....................................................................................... 11
II.
RESPA ISSUES ARE THE TOP AREA NEEDING TRAINING....................... 13
A. Affiliated Business Arrangements Are Likely to Be a Source of
Increased Disputes ........................................................................................ 15
B. Kickbacks May Result in Legal Exposure If No Additional
Compensable Services Are Provided for the Fee Charged........................ 16
C. While There May be Disputes About Disclosure of Settlement
Costs, They Are Not Likely to Lead to Liability Under RESPA .................. 18
III.
PCD ISSUES AND "AS IS" CLAUSES CONTINUE TO BE
SIGNIFICANT, PARTICULARLY WHEN THERE IS A LARGE
INVENTORY OF BANK-OWNED PROPERTIES............................................ 19
A. Mold and Water Intrusion Claims Can Result in Substantial Legal
Exposure ........................................................................................................ 19
B. Structural Defects Will Continue to Cause Disputes .................................. 21
C
More Education about Sewer Service and Septic Systems Is
Warranted. ...................................................................................................... 22
Copyright 2009 National Association of REALTORS®
i
D. Misstatements of Square Footage and Different Methods of
Measurements Cause Disclosure Disputes Affecting the Value of a
Property .......................................................................................................... 25
E. An Emerging Problem with Imported Drywall May Lead to an
Increased Number of Disputes about Disclosure: Flooring and
Walls ............................................................................................................... 26
F. A Variety of New and Amended Statutes and Rules Affect
Licensees' Duty to Disclose Information about the Condition of
Property .......................................................................................................... 27
G. Disputes Involving "As Is" Clauses May Increase as a Result of the
Increase in Sales of Bank-Owned Property................................................. 30
IV.
FRIVOLOUS LAWSUITS ARE EXPECTED TO INCREASE .......................... 32
V.
COMMISSION DISPUTES AND PROCURING CAUSE WILL BE
SIGNIFICANT SOURCES OF DISPUTES, ESPECIALLY AS THE
ECONOMY CONTINUES TO AFFECT SALES AND BRING BANKS
INTO TRANSACTIONS................................................................................... 33
VI.
TECHNOLOGY ISSUES ARE EXPECTED TO INCREASE IN
IMPORTANCE OVER THE NEXT TWO YEARS ............................................ 35
A. Anti-solicitation Laws and Privacy Concerns May Be Implicated by
New VOWS Rules........................................................................................... 36
B. State Internet Advertising Rules................................................................... 37
VII.
ANTITRUST ISSUES ARE NOT A SIGNIFICANT SOURCE OF
DISPUTES, BUT ADDITIONAL TRAINING ON ANTITRUST ISSUES IS
NEEDED.......................................................................................................... 38
VIII. THIRD-PARTY LIABILITY IS NOT A PRESSING AREA OF CONCERN ...... 40
A. Inspectors....................................................................................................... 40
B. Appraisers ...................................................................................................... 41
IX.
FAIR-HOUSING ISSUES ARE NOT SEEN AS AREAS OF
INCREASED LIABILITY, THOUGH THEY WARRANT ON-GOING
TRAINING ....................................................................................................... 41
ii
X.
SURVEY RESPONDENTS' CONCERNS ABOUT EMPLOYMENT
ISSUES FOCUS ON INDEPENDENT CONTRACTORS, DEFAMATION,
AND PERSONAL ASSISTANTS..................................................................... 43
A. The Status of Agents as Independent Contractors Is Under
Increased Scrutiny......................................................................................... 43
B. Defamation Is Perceived as Needing Additional Training.......................... 44
C. The Issue of Personal Assistants Is Another Area Where More
Training Is Needed......................................................................................... 45
D. Wage-and-Hour Claims Under the Fair Labor Standards Act May Be
Another Emerging Area of Liability for Brokers.......................................... 46
E. An Age-Discrimination Claim, Arising in the Context of Downsizing,
Resulted in a $1.85 Million Verdict ............................................................... 47
XI.
DISPUTES INVOLVING STATE DECEPTIVE-PRACTICES AND
CONSUMER-PROTECTION STATUTES REMAIN A SOURCE OF
LIABILITY FOR LICENSEES .......................................................................... 47
XII.
RESPONDENTS' CONCERNS ABOUT ETHICS RELATE TO ETHICS
IN GENERAL RATHER THAN TO HOW COURTS ENFORCE AND
RELY ON THE NAR CODE OF ETHICS......................................................... 50
XIII. LICENSING ISSUES ....................................................................................... 51
XIV. MORE TRAINING ON RELATIONSHIPS BETWEEN AFFINITY
GROUPS AND REAL-ESTATE BROKERAGES IS SUGGESTED ................ 52
XV.
LICENSING OF RELOCATION COMPANIES ................................................ 53
iii
NATIONAL ASSOCIATION OF REALTORS®
2009 LEGAL SCAN: LEGAL ISSUES FACING
REAL-ESTATE PROFESIONALS
The National Association of REALTORS® has conducted a survey of the current
legal environment faced by real estate professionals.
NAR undertakes this
comprehensive research project, or "Scan," every two years. It analyzes current legal
liability issues and identifies emerging legal and risk issues. The Scan is based on
surveys of key people in the real-estate industry, as well as data obtained from case law
and statutory research.
This report discusses developments in several major-topic areas, including the
legal research and the survey results, emerging trends, and the need for training. The
results of the legal research and the survey data are set forth in the tables in Appendix
1. Lists of the cases, statutes, and regulations, organized by issue, are provided in
Appendices 2 and 3. The research technique is described in Appendix 4. This last
Appendix describes the scope of the project, and how the legal-research and survey
data were collected.
Agency issues are the top area of concern for real estate professionals, along
with RESPA and Property Condition Disclosure.
These issues, along with As-Is
Clauses and Commission Disputes, seem to be particularly important in the current
down market, where many licensees may be unsure of how to handle the unique
challenges being presented. Other issues emerging from the current economy include
wage-and-hour claims and potential liability for "mortgage rescue" scams.
1
I.
AGENCY ISSUES REMAIN THE TOP AREA OF CONCERN.
Agency is one of most important topics in the Scan. About 28% of the survey
respondents reported that Agency issues were a significant source of current disputes,
and more than 35% indicated they would increase in importance over the next two
years. Significantly, more respondents ranked various Agency issues among their top
three than any group of issues in the Scan except Commission Disputes/Procuring
Cause. In addition to various statutory and regulatory developments, the main issues in
this area are breach of fiduciary duty, dual agency, agency disclosure, and buyer
representation.
A.
State Legislatures and Real-Estate Commissions Have Adopted a Variety
of New Provisions Relating to Agency Relationships.
Statutes and regulations redefining the relationship between licensees and the
people they serve were abundant. Approximately 144 statutes and regulations were
located addressing agency issues, about the same number as were collected for the
2007 Scan. (See Table 3.)
Rhode Island, for example, enacted a new statute, entitled Real Estate Agency
Relationships in Residential Real Estate Transactions, and expressly abrogated
traditional common-law agency and fiduciary duties in residential real-estate
transactions. 1
This legislation is an example of a recent trend among states. The
statute now presumes that licensees are "transaction facilitators" who do not owe
1
R.I. Laws ch. 344 (2007), codified as R.I. Gen. Laws §§ 5-20.6-1 to -.6-13 (2007).
2
fiduciary duties to either party. 2 Any other kind of client representation requires the use
of a "mandatory relationship coordinator," with its own specific disclosure statement that
the broker must keep on file after the client signs it. If the procedures for establishing
an agency-like relationship are not followed, the statutory presumption that the licensee
is acting as a transaction facilitator applies. 3 The statute specifically provides that a
payment or promise of payment to a licensee will not create an agency relationship. 4
Several states specify mandatory duties licensees owe their customers or clients.
Idaho, for example, requires licensees "to be available to the client to receive and
present written offers and counteroffers." 5 Idaho draws a distinction between "clients"
and "customers."
Whereas a licensee must give "customers" limited assistance, a
licensee represents a "client." 6
Michigan and Vermont have adopted statutes or
regulations permitting the use of "limited agents" and defining their duties. 7
Nevada has adopted regulations establishing "exclusive agency listing
agreements," "exclusive buyers brokerage agreements," and "exclusive right to sell or
2
R.I. Gen. Laws § 5-20.6-3 (2007).
3
See id. §§ 5-20.6-3, -8, -9.
4
Id. § 5-20.6-11.
5
Idaho Code § 54-2087 (2007).
6
Compare Idaho Code § 54-2086 (2007) with id. § 54.2087.
7
See Mich. Comp. Laws §§ 339.2501, .2512d, .2517 (2008); Vt. Real Estate Comm'n
R. 4.4 (2008).
3
lease agreements." 8
The regulations define the concept of "exclusive agency
representation" and set forth the exclusive agent's minimum duties, including the duty to
present all offers. 9 A statute passed before these regulations were adopted allows a
client to waive—in writing—the licensee's duty to present all offers, but no other waiver
of the licensee's duties is allowed. 10
Kansas has a similar regulation that authorizes a broker to designate a licensee
to represent a client, and other licensees in the broker's office "shall not be deemed" to
have any agency relationship with that client. 11
Nebraska adopted a regulation addressing actions by limited agents for either
party
or
by
a
dual
agent
that
demonstrate
"negligence,
incompetence
or
untrustworthiness." These actions include failing to reduce offers to writing when a
buyer requests it. 12
B.
Breach of Fiduciary Duty Continues to Be a Common Source of Licensee
Liability.
Breach of Fiduciary duty is one of the top issues identified in the survey
responses, both by state real-estate commissions and the Key Contacts within the realestate industry. More than 50% of the survey respondents indicated that Breach of
8
See 128 Nev. Reg. Admin. Regs. reg. no. 165-07, §§ 2-4 (Apr. 17, 2008).
9
Id., § 5.
10
See Nev. Rev. Stat. §§ 645.254, subds. 4, .255 (2007).
11
Kan. Admin. Reg. § 86-3-26a (2007).
12
See 299 Neb. Admin. Code § 5-003-18 (2007).
4
Fiduciary Duty was the basis for a significant number of current disputes, and more than
61% ranked the issue among their top three current issues. (See Tables 17, 19.) The
issue will probably continue to be significant: 57% of the respondents believe that it will
increase in importance over the next two years, and it is the top-ranked potential future
issue, with more than 72% of the respondents ranking it among their top three issues.
(See Tables 20, 21.) Not surprisingly, two-thirds of the respondents believe there is a
significant need for training on this issue.
The data from the commissioners is
consistent with that of the Key Contacts. (See Table 10.)
The
problems
reported
in
the
respondents'
comments
range
widely.
Respondents frequently cited licensees' lack of understanding of what it means to be a
fiduciary.
•
"It is easy to underestimate or fail to appreciate the level of duty that is required."
•
"As much as this topic is presented to agents, I am amazed at the lack of
understanding of the responsibility they have to their clients."
•
"Most agents don't understand how easily and innocently [a breach of fiduciary
duty] can occur."
•
"Many agents do not understand what these duties are and consequences of
breaching them."
•
"The goal is the 'deal' and not correct representation."
Some respondents coupled that lack of understanding with the licensees' need to earn a
commission.
"Agents do not understand fiduciary duties and need a commission."
"[T]oo many agents still do not understand what their duty is, or, they put their
commission first."
5
For many respondents, however, the issue seems to be a catch-all that is used
when a licensee makes a mistake. Several noted that this type of claim seems to be
alleged in almost every transactional dispute. One respondent simply stated, "I do not
believe that the majority of [licensees] or brokers take fiduciary duties seriously."
The legislation and regulations addressed two major issues: "shopping" of
competing offers and disclosure of a licensee's interest in a property. North Carolina
and Montana have promulgated specific rules prohibiting licensees from disclosing the
price and material terms of one client's offer on a property to another client who is
making an offer on the same property. 13
Kansas and Virginia have adopted rules
expanding a licensee's obligation to disclose interests in property to include members of
the licensee's immediate family and, in Virginia, the licensee's business interests. 14 In
Vermont, if a licensee wishes to purchase property he or she has listed, or that the
licensee's firm has listed, the licensee must have a limited agency agreement in place,
or allow the seller to terminate the listing. 15
The survey of case law and jury verdict reports collected 50 items involving
breach of fiduciary duty. This number is comparable to the number collected for the
2007 Scan. (See Table 2.) In the 37 cases in which liability was determined, the
13
See Mont. Admin. R. 24.210.641(5)(s) (2007); 21 N.C. Admin. Code 58A.0115
(2007).
14
See Kan. Admin. Reg. § 86-3-19 (2008); 18 Va. Admin. Code § 135-20-210 (2008).
15
Vt. Real Estate Comm'n R. 4.5(f) (2008).
6
licensee was found not liable 49% of the time. The large verdicts include the following
cases:
•
Schlimmer The plaintiffs claimed that the broker did not tell them the seller had
sued the builder twice over construction defects. The home had leaks in the roof
and windows, along with wood rot. The seller settled for $500,000, and that
amount was credited against a jury verdict against the broker for $980,000.
Ultimately, a judgment of $652,000 was entered against the broker. 16
•
Carmody The seller was acting as her own agent, using her employer as the
broker. The shower leaked inside the walls of the bathroom, and the buyers
claimed that repairing the leak was a condition of the sale. They claimed that the
seller did not repair the leak, and the buyers discovered mold in the walls. The
jury returned a verdict of $347,351, consisting of $97,351 in compensation to the
buyers, $200,000 in punitive damages against the broker, and $50,000 in
punitive damages against the seller. 17
•
Richards The brokers, a husband and wife team, used the plaintiff's money to
buy land, but titled it in their own names and refused to turn it over to the plaintiff.
They did not appear in the court suit and the judge awarded treble damages
totaling $126,345. 18
C.
Dual Agency Remains an Area Requiring Training.
Dual agency continues to be an important area of concern for the survey
respondents. More than 37% of them stated that the issue is the basis of a significant
number of current disputes, and over 44% placed the issue among their top three
current issues. (See Tables 17, 19.) Forty-four percent of the survey respondents
16
Schlimmer v. Coldwell Banker Pacesetter Steel Realtors, No. 06-5384-G, 2007 WL
4247016 (Tex. Dist. Ct. Nueces County Nov. 1, 2007).
17
Carmody v. Sultzbaugh, No. 401-02325-02, 2007 WL 2316039 (Tex. Dist. Ct. Collin
County July 16, 2007).
18
Richards v. Loftman, No. 06-CA-970 CA, 2007 WL 3144687 (Fla. Cir. Ct. Clay County
Sept. 10, 2007).
7
believe that the issue will increase in importance over the next two years, 54% ranked it
among their top three potential future issues, and nearly 57% believe there is a
significant need for training on Dual Agency. (See Tables 20-22.) The data from the
commissioners' survey is similar to that of the Key Contacts. (See Table 10.)
While the significant agency legislation is discussed in § A above, note that
Vermont, like several other states, now prohibits dual agency altogether. 19
Twenty-two cases addressed dual agency issues in some manner. Liability was
decided in 14 of those cases: nine cases ended in a determination that that licensee
was not liable and five ended in a plaintiff's verdict. Several of these verdicts were
substantial.
19
•
Hawkins A dual agent added an "as is" clause to the purchase agreement
without the buyer's consent. The jury returned a $62,641 verdict. 20
•
Jenkins The seller's agent, acting as an undisclosed dual agent, signed a sales
agreement for the sellers that contained provisions the sellers never agreed to,
resulting in a $24,843 verdict. 21
•
Maali A dual agent arranged the sale of a gas station, but the national franchisor
refused to approve the transfer of the franchise agreement to the buyer. The
agent's broker was found vicariously liable for the agent's conduct; the jury
awarded $149,000 in compensatory damages and $50,000 in punitive
damages. 22
See Vt. Real Estate Comm'n R. 4.4 (2008).
20
See, e.g., Hawkins v. Pridgen, No. BC 326075, 2007 WL 2068585 (Cal. Super Ct.
L.A. County Feb. 26, 2007).
21
Jenkins v. Strauss, 931 A.2d 1026 (D.C. 2007).
22
Maali v. Abtahi, No. H030086, 2008 WL 163007 (Cal. Ct. App. Jan. 16, 2008).
8
•
Martinez v. AFM Realtors of Am. The buyer wanted to purchase an apartment
complex that was not subject to rent control, and the dual agent did not tell him
the property was subject to rent control. The jury returned a $209,100 verdict. 23
One case, Sampson, 24 ended in a substantial settlement.
Ralph Sampson
purchased a home for about $3.25 million with the understanding that it included
sufficient land to build a pool and outbuilding. He later found out that he could not install
a pool because the property already exceeded local "hardscape" limits. To obtain a
variance for the pool, the plaintiff had to reduce the "hardscape" by replacing a paved
driveway with cobblestones. There was no way he could obtain a variance for the
planned additional building. A single broker represented both sides of the transaction,
with different agents representing each party. The agent representing Sampson was
dismissed; the agent representing the seller allegedly made the material misstatements
of fact that induced Sampson to buy the property. The case settled for $450,000.
D.
Agency Disclosure Is an Important—But Sometimes Overlooked—Area.
Agency Disclosure was added to the Scan in 2007 and it is an important issue for
survey respondents. Although only about 35% of the respondents reported that Agency
Disclosure is the basis for a significant number of current disputes, the issue was the
top-ranked current issue, with over 68% of the respondents placing it among their top
three. (See Tables 17, 19.) Almost 40% believe the issue will increase in importance
23
Martinez v. AFM Realtors of Am., No. 2002071380, 2007 WL 4976568 (Cal. Super
Ct. Alameda County Mar. 2, 2007).
24
Sampson v. Kagel, No. 105CV053398, 2007 WL 715347 (Cal. Super. Ct. Santa Clara
County Feb. 2, 2007).
9
over the next two years, and nearly 63% place it among their top three potential future
issues. (See Tables 20, 21.) More than 52% believe there is a significant need for
training about Agency Disclosure.
Agency disclosure is a crucial issue, according to the survey respondents. Their
comments are revealing:
•
"We still have 80% of the agents who don't follow the process."
•
"It appears to be a requirement that is often overlooked and not sufficiently
explained to prospects."
•
"Agents forget or ignore the rules."
•
"A lot of agents are not disclosing agency at the first substantive contact."
•
"Disclosure is most often mishandled."
•
"Buyers, more than sellers, are not being told who[m] the agent represents."
Many agents simply do not appreciate how important agency-relationship disclosure is,
do not provide necessary information, provide disclosure information too late, and "[do]
not tak[e] the time and effort to explain how they work with the public." The choices are
not explained. One respondent merely explained, "Agents are lazy." As a result, "the
public still is not well informed on who represents whom and the consequences of
representation."
Thus, “[t]his will be an ongoing need . . . to train agents to provide
timely, and properly informative, information for the public to make an informed decision
about the true value and nature of the relationship.”
States continue to enact legislation and tweak rules relating to Agency
Disclosure, emphasizing that disclosure is required. In Delaware, for example, agency
10
disclosure must be provided regardless of whether the relationship is a common-law
agency or a "statutory" agency, and the licensee must have written confirmation that
disclosure was provided. 25 Rhode Island, like many states, has a statute mandating the
specific content of the disclosure when a licensee is acting in an agency-like capacity.
The state enacted a law requiring clients to sign a copy of the disclosure statement and
requiring brokers to retain the signed copy. 26 Pennsylvania adopted a regulation that
defines "initial interview" and "first substantive discussion" for purposes of agency
disclosure; disclosure is required at the initial interview, but it is not required for the sale
or lease of commercial property. 27
E.
Buyer Representation Is Not Well Understood by Licensees or Well
Explained to Clients.
While only 31% of survey respondents indicated that Buyer Representation was
the source of a significant number of current disputes, almost 55% stated the issue had
moderate or higher current significance, and more than 60% ranked it among their top
three current issues. (See Tables 18, 19.) Almost 44% of the respondents believe the
issue will increase in importance over the next two years, and more than 52% include it
among their top three potential future issues. (See Tables 20, 21.) This belief that
Buyer Representation is increasing in importance is reflected in the fact that more than
25
24 Del. Admin. Code 2900, reg. 10.3 (2007).
26
R.I. Gen. Laws §§ 5-20.6-8, .6-9 (2007).
27
49 Pa. Code §§ 35.201, .286, .336 (2008).
11
58% of the respondents indicated that there is a significant need for training on the
issue.
The
respondents’
representation.
First,
comments
buyer
set
forth
representatives
three
do
not
key
points
always
about
understand
buyer
their
responsibilities to their clients and do not always explain their role to their clients.
Second, the use of buyer representation may invite a dispute about procuring cause.
"Buyer representatives tend to appear after another broker has procured a purchaser."
Several respondents made that point. Third, consumers buying in the current market
are "wary," prompting them to "contract with their own broker/agent [and they] will
expect greater knowledge of the professional."
Case-law research retrieved 33 cases addressing buyer-representation disputes.
Nineteen of these cases determined whether the licensee was liable, and seven ended
with a judgment favoring the plaintiff. A significant case, Rivkin, was decided in New
York. 28 The question presented was whether a broker or agent representing multiple
buyers competing for the same property had a duty to disclose that they represented
other potential buyers. The New York Court of Appeal concluded that while the broker
did not have a duty to disclose, if an individual agent was working with multiple buyers
seeking the same property, that agent had to disclose the situation and have his or her
28
Rivkin v. Century 21 Teran Realty LLC, 10 N.Y.3d 344, 858 N.Y.S.2d 55 (2008). See
also Rivkin v. Century 21 Teran Realty LLC, 494 F,3d 99 (2d Cir. 2007) (certifying
question to New York Court of Appeal); Rivkin v. Century 21 Teran Realty LLC, 535
F.3d 105 (2d Cir. 2008) (adopting ruling on certified question and affirming summary
judgment for agent).
12
clients' consent in order to continue with the transaction. Note also that North Carolina
and Montana prohibit licensees from disclosing the price and material terms of one
client's offer on a property to another client who is making an offer on the same
property. 29
II.
RESPA ISSUES ARE THE TOP AREA NEEDING TRAINING.
Taken as a whole, the survey results indicate that RESPA is a top area of
concern. About 35% of the survey respondents indicated that RESPA issues were the
basis for a significant number of current disputes, and more than 54% believe these
issues will increase in importance over the next two years. (See Tables 11, 14.) In fact,
the topic of RESPA is the most significant training need. Nearly 61% of the survey
respondents indicated there was a significant need for training on these issues, far and
away the highest item on the list. (See Table 16.)
In November 2008, the Department of Housing and Urban Development (HUD)
promulgated a new final rule addressing several RESPA issues. The changes are
intended to prevent consumers from being charged unnecessarily high settlement costs,
help them comparison-shop among lenders, improve disclosure and consumer
29
See Mont. Admin. R. 24.210.641(5)(s) (2007); 21 N.C. Admin. Code 58A.0115
(2007).
13
understanding of yield-spread premiums (YSPs), and strengthen the prohibitions on
requiring consumers to use affiliated businesses. 30
The National Association of Home Builders and the National Association of
Mortgage Brokers have filed lawsuits challenging the new final rule. 31 The lawsuits
allege that HUD did not follow statutory rulemaking procedures and unfairly single out
home builders or mortgage brokers for additional regulation. The NAHB lawsuit has
delayed effective date of the definition of "required use" until July 16, 2009. 32 HUD also
solicited public comment on withdrawing the definition of "required use" before starting a
new rulemaking proceeding on that definition. "HUD has determined to reevaluate the
scope and operation of the required use provision [and] present for public consideration
a new proposal based upon HUD's reevaluation of the required use provision to help
ensure better consumer protections." 33 The effective dates and implementation dates
of other provisions of the new final rule are not affected. 34
30
See Real Estate Settlement Procedures Act: Rule to Simplify and Improve the
Process of Obtaining Mortgages and Reduce Consumer Settlement Costs; Final Rule,
73 Fed. Reg. 68204–68288 (Nov. 17, 2008) (amending 24 C.F.R. pts. 203 and 3500).
31
See Nat'l Ass'n of Home Builders v. Dep't of Hous. & Urb. Dev., No. 1:08-cv-1324CMH/TCB (E.D. Va.), filed Dec. 22, 2008; Nat'l Ass'n of Mtge. Brokers v. Dep't of Hous.
& Urb. Dev., No. 1:08-cv-02208-JR (D.D.C.), filed Dec. 19, 2008.
32
See 74 Fed. Reg. 10172 (March 10, 2009). See also 74 Fed. Reg. 2369 (January 15,
2009) (originally delaying implementation date to April 16, 2009).
33
34
74 Fed. Reg. at 10172.
74 Fed. Reg. at 10173.
14
A.
Affiliated Business Arrangements Are Likely to Be a Source of Increased
Disputes.
Affiliated Business Arrangements were the source of a significant number of
current disputes according to nearly 43% of the survey respondents, and approximately
62% believe the issue will increase in importance over the next two years. (See Tables
17, 20.) The issue is at the top of the list of significant training needs, with close to 70%
of the respondents indicating there is a significant need for training about Affiliated
Business Arrangements.
In addition to the Final Rule noted above, a few states passed statutes
addressing related issues.
Colorado, for example, passed a statute addressing
situations in which a real-estate broker also acts as a mortgage broker for the same
client. The statute imposes restrictions on acting in both roles, sets out record-keeping
requirements, and requires that the two activities be kept physically separated. 35 A
California licensee must disclose when he or she is acting in a dual role, if the licensee
is also arranging financing for a client. 36
Fifteen cases addressing Affiliated Business Arrangements were located, a
substantial increase over the 2007 Scan. (See Table 2.) None, however, ended in a
finding of liability for a real-estate licensee, and nearly all were dismissed before trial. In
most of these cases, plaintiffs alleged that they were required to use the services of an
35
Colo. Rev. Stat. § 12-61-912 (2007).
36
Cal. Bus. & Prof. Code § 10177.6 (2008).
15
affiliated business, but because the courts concluded that the use of the affiliated
business was not, in fact, required, no violation occurred. 37
B.
Kickbacks May Result in Legal Exposure If No Additional Compensable
Services Are Provided for the Fee Charged.
While only about 36% of the survey respondents identified Kickbacks as a
significant source of current disputes, more than 58% identified it as an issue with
moderate or higher current significance, and 53% believe the issue will increase in
importance over the next two years. (See Tables 17, 18, 20.) Like Affiliated Business
Arrangements, it is toward the top of the list of significant training needs, with almost
61% of the survey respondents indicating additional training on this issue is needed.
The issue has been frequently litigated during the last two years; real-estate
licenses were not defendants in most of them, however.
The specific issue being
litigated is usually whether a particular fee is an "overcharge" or a "mark-up." The key
factual question is whether the defendant provided any additional compensable work or
services for the fee. The fact that a fee seems excessive does not constitute a RESPA
violation, because RESPA is not a price-control statute. Consequently, courts will not
analyze whether a fee is partly earned and partly unearned 38 ; nor will they permit
37
See, e.g., Spicer v. Ryland Group, Inc., 523 F. Supp. 2d 1356 (N.D. Ga. 2007), aff'd,
294 Fed. Appx. 434 (11th Cir. 2008); Capell v. Pulte Mtge., L.L.C., No. 70-1901, 2008
WL 269521 (E.D. Pa. Jan. 14, 2008); Capell v. Pulte Mtge. L.L.C., No. 70-1901, 2007
WL 3342389 (E.D. Pa. Nov. 7, 2007); Parra v. Minto Town Park, LLC, No. 08-14168CIV, 2008 WL 4773272 (S.D. Fla. Oct. 30, 2008).
38
See Morrisette v. Novastar Home Mtge., Inc., 284 Fed. Appx. 729 (11th Cir. 2008);
Friedman v. Market St. Mtge. Corp., 520 F.3d 1289 (11th Cir. 2008).
16
litigation about whether a particular fee—such as a recording fee, for example—was
reasonable. 39 Instead, courts analyze whether the total compensation was reasonable
in light of the total array of services the broker performed. 40
Another case noted,
however, that just because a fee was disclosed did not make it legal; if the fee was not
actually earned, it was not legal. 41
The case-law research retrieved 69 cases addressing Kickbacks, a substantial
increase over the 2007 Scan. (See Table 2.). Liability was determined in 38 of these
cases, and 35 cases (51%) were decided in the defendants' favor before trial. Only
three cases ended in a finding of liability and one case settled. 42
The settlement
involved a class-action case, with 44,000 class members, and allegations of illegal
39
See Edwards v. Accredited Home Lenders, Inc., No. 07-0160-KC-C, 2008 WL
2952075 (S.D. Ala. July 29, 2008).
40
See Culpepper v. Irwin Mtge. Corp., 491 F.3d 1260 (11th Cir. 2007).
41
See Cohen v. JP Morgan Chase Co., 498 F.3d 111 (2d Cir. 2007) (addressing "postclosing fee" and reversing order of dismissal).
42
See Simpson v. Aapex Fin. Group, Inc., No. 1:07cv1304 AWJ DCB, 2008 WL
3540601 (E.D. Cal. Aug. 11, 2008) (magistrate recommended entry of default judgment
against lender for illegal yield-split premium, setting damages at $68,756); Clifford v.
FMF Capital, LLC, No. 1:06-CV-316, 2007 WL 1701816 (W.D. Mich. June 11, 2007)
(court granted summary judgment against loan broker for an illegal referral fee; plaintiff
thought she was getting a fixed-rate loan and the yield-split amount was not reasonable
or based on actual services provided; damages of $1240 were trebled, totaling $3720);
Travis v. Prime Lending, No. 3:07CV00065, 2008 WL 2397330 (W.D. Va. June 12,
2008) (default judgment of $5548.21).
17
lending practices. The claims settled for $33 million, and an additional $8.1 million was
designated as attorney's fees, for a total settlement of $41,100,000. 43
C.
While There May be Disputes About Disclosure of Settlement Costs, They
Are Not Likely to Lead to Liability Under RESPA.
The survey results for Disclosure of Settlement Costs follow the pattern for the
other two RESPA issues. Although only 25% of the survey respondents indicated that
the issue formed the basis of a significant number of current disputes, nearly 53%
indicated the issue has moderate or higher current significance, and almost 48% believe
the issue will increase in importance over the next two years. (Tables 17, 18, 20.)
Similarly, nearly 53% believe additional training about Disclosure of Settlement Costs is
needed.
Respondents' comments about this issue were sparse, but illustrated diverging
opinions about RESPA and federal regulation. One stated, "government over-regulation
can confuse, slow down, [and] damage the closing process." Another, however, noted
that "RESPA has been treated as a joke by mortgage brokers and closing companies
and lawyers."
A third suggested that an era of increased disclosure will lead to
increased disputes about disclosures of settlement costs.
Sixteen cases were located addressing this issue, but none of them resulted in a
finding of liability. In fact, nearly all of them were dismissed because courts do not
43
See In re Community Bank of N. Va. & Guaranty Bank Second Mortgage Litig., Nos.
02-1201, 03-425, 03,1380, 05-589, 05-590, 05-688, 05-1386, 06-768, 2007 WL
2008494 (W.D. Pa. July 5, 2007).
18
recognize a federal cause of action for damages for violations of RESPA's provisions
relating to disclosure of settlement costs. 44
III.
PCD ISSUES AND "AS IS" CLAUSES CONTINUE TO BE SIGNIFICANT,
PARTICULARLY WHEN THERE IS A LARGE INVENTORY OF BANK-OWNED
PROPERTIES.
Property Condition Disclosure is an ongoing source of disputes. Taken together,
about 33% of the survey respondents report that disclosure issues are a significant
source of current disputes, and nearly 41% rank disclosure issues among their top three
current issues. (See Tables 11, 13.) Almost 45% believe the topic is likely to increase
over the next two years, and 44% believe there is a significant need for training about
Property Condition Disclosure. (Table 16.)
One theme running through the
respondents' comments is that, with banks owning properties being offered for sale,
licensees do not really know what the problems are, which may result in disappointed
buyers and increased disputes.
A.
Mold and Water Intrusion Claims Can Result in Substantial Legal
Exposure.
Mold and Water Intrusion is the source of a significant number of current
disputes, according to nearly 45% of the survey respondents, and a similar percentage
of the respondents ranked the issue among their top three current issues. (See Tables
17, 19.)
Over 56% of the respondents believe the issue is likely to increase in
44
Bamba v. Resource Bank, 568 F. Supp. 2d 32 (D.D.C. 2008); Johnson v. Equity Title
& Escrow Co., 476 F. Supp. 2d 873 (W.D. Tenn. 2007); Wells Fargo Fin., Inc. v. Daum,
No. 05 C 4192, 2007 WL 2743034 (N.D. Ill. Sept. 10, 2007).
19
importance over the next two years, and almost 40% ranked it among their top three
potential future issues. (See Tables 20, 21.) Over 55% believe there is a significant
need for training on this issue.
Several respondents noted that mold is an expensive problem to fix. One noted,
"the cost of mold remediation is so high and agents and inspectors need to be more
knowledgeable." Another pointed out that "companies in the mold-remediation business
will continue to advertise how dangerous it is and mold is everywhere. There will be no
definitive guidelines on mold." In addition, mold is usually a hidden problem, so it is
either not known or not readily discovered. For some, mold forms the basis for frivolous
lawsuits because it is "such an iffy issue." Another respondent distinguished between
mold and water intrusion. "Water is always a big non-disclosure issue. Mold not so
much anymore, but water always and mold follows."
The issue of mold and water intrusion was also linked to the foreclosure crisis.
Several respondents noted that water intrusion "has become a larger issue due to the
number of homes not being maintained" or sitting empty for long periods of time.
Mold and water intrusion was an issue in 16 cases retrieved for the Scan. Of the
seven cases in which liability was determined, three were decided in favor of the agent
or broker, and four ended in a damage award for the plaintiff. Six cases settled. In fact,
three of the five largest settlements included claims relating to disclosure of mold. (See
Table 9.) 45
Another case involving mold, Carmody v. Sultzbaugh, was discussed
45
Watts v. Kelley, No. CISCV153087, 2007 WL 2316079 (Cal. Super Ct. Santa Cruz
County May 30, 2007) ($450,000 settlement from many defendants); Poyner v. RECopyright 2009 National Association of REALTORS®
20
above in the section addressing breach of fiduciary duty. As noted, that case ended in
a plaintiff's verdict of $347,352, including a $200,000 punitive-damages award against
the broker.
B.
Structural Defects Will Continue to Cause Disputes.
Disclosure of structural defects is another perennial "catch-all" claim brought
against agents and brokers.
As with the issue of mold, nearly 45% of the survey
respondents indicated that structural defects formed the basis of a significant number of
current disputes, and nearly 51% ranked this issue among their top three current issues.
(See Tables 17, 19.) Similarly, 47% of the respondents believe this issue is likely to
increase over the next two years, and nearly 45% believe there is a significant need for
training about disclosure of structural defects. (See Tables 20, 22.)
Respondents from all over the United States noted that disputes involving
structural defects are extremely common. The reasons vary. Many pointed to the
sellers, noting that sellers and owners are not disclosing the defects. Another noted the
increased role of banks as sellers: "banks [are failing] to disclose and agents [are]
getting stuck with the issue." One respondent noted that "[a]gents misunderstand the
requirement to disclose [known] material defects and even what constitutes a material
defect."
MAX Experience, No. RIC438019, 2007 WL 5248726 (Cal. Super. Ct. Riverside County
June 18, 2007) ($35,000); Leis v. A. Lewis Purdy Real Estate, No. L-000432-04, 2007
WL 2492443 (N.J. Super Ct. Law Div. May 10, 2007) ($30,000).
21
Case-law research located 21 cases involving structural defects. Liability was
determined in 13 of those cases, and 8 cases ended in a dismissal, summary judgment,
or defense verdict. Five cases ended in plaintiffs' verdicts. The three largest verdicts
include:
•
Fox In a case involving the sale of an apartment building, the seller's wife acted
as the real-estate agent. The building had cracks and bulges due to settling and
the apartment building cracked open. The jury returned a $151,050 verdict. 46
•
Goodale The sellers and the agent were found jointly liable for intentional
misrepresentations about the property and the jury awarded $278,860.43 in
damages. The appellate court reversed the punitive-damages award of $75,000
assessed against the agent. 47
•
Bavuso Cracks in a wall caused water to seep into the basement. The jury
awarded $128,212.20. 48
C
More Education about Sewer Service and Septic Systems Is Warranted.
Although only about 30% of respondents indicated that Disclosure: Sewer/Septic
is a source of a significant number of current disputes, over 66% believe this issue has
moderate or higher significance. (See Table 18.) The level of disputes is not expected
to increase over the next two years, but it is among the top three potential future issues
for approximately 36% of the survey respondents. (See Table 21.) Over 42% of the
46
Fox v. Heimann, 872 N.E.2d 126 (Ill. App. Ct. 2007).
47
Goodale v. Langenberg, 243 S.W.3d 575 (Tenn. Ct. App. 2007).
48
Bavuso v. Springfield Better Homes Inc., No. CV 105 5702 CC, 2008 WL 5723892
(Mo. Cir. Ct. Clay County Oct. 29, 2008).
22
respondents believe there is a significant need for training about this issue. (See Table
22.)
This issue—especially disclosure relating to septic systems—has unique, local
ramifications. According to one respondent from Connecticut, "60 to 70% of reported
lawsuits against agents involve sewage disposal." A respondent in Washington reports
that this issue is "number three in the list of lawsuits filed." It is "a traditional source of
problems and confusion in Madison County, Indiana." Another commented that "many
real estate agents do not know differences in septic systems, and neither do the
owners."
The case law illustrates some of the problems. In some, the property was not
hooked up to municipal sewer service 49 or the seller was not aware that the property
had a septic tank. 50 In another case, sewage was dumping into a local waterway. 51
49
Farmer v. Ricigliano, No. A454221, 2007 WL 4885383 (Nev. Dist. Ct. Clark County
Sept. 25, 2007) (PCD statement was not provided until after closing and buyer did not
learn that property was not connected to the city sewer; verdict for defendants);
Crawford v. Mintz, 653 S.E.2d 222 (N.C. Ct. App. 2007) (affirming $7278 jury verdict,
where trial court ruled jury could decide whether buyer could justifiably rely on MLS
information that home was connected to city sewer service), rev'd, 669 S.E.2d 738 (N.C.
2008) (ordering verdict for defendant).
50
Baker v. Gilhooly, No CV065003939, 2008 WL 3853436 (Conn. Super. Ct. July 24,
2008).
51
Pettit v. Hughes, No. CH2005065, 2007 WL 4962061 (Ohio Com. Pl Muskingum
County July 16, 2007) (no disclosure of fact raw waste from home was discharged into
river; jury decided "buyer beware" prevailed), aff'd on appeal, 894 N.E.2d 738, 2008Ohio-3780 (Ohio Ct. App. 2008) (plaintiffs contended that broker did not understand
diagram that was in inspection report; court concluded that was not "recklessness" that
could support a finding of liability).
23
Elsewhere, the sellers misunderstood where the property line was when they bought the
property, and when the buyers took possession, they discovered that not only did the
septic system need work, but the new leach field was being built on somebody else's
property! 52
A few states have adopted laws or regulations addressing septic-tank issues.
Rhode Island, for one, passed the Rhode Island Cesspool Act, which requires a 10-day
period for the prospective buyer to have the septic system inspected. 53 The property
condition disclosure statement now includes a cesspool note that instructs the buyer to
consult the statute regarding the phase-out of septic systems and recommends an
independent inspection. 54 South Dakota also amended its property condition disclosure
statement to include disclosure about septic systems. 55
In Tennessee, a licensee
preparing in offer to buy a property must inform the buyer that a "septic system
inspection letter" can be obtained (for a fee), to help determine whether the system is
working properly. 56
52
Wagoner v. Obert, No. 07 CA 31, 2008 WL 5491273, 2008-Ohio-7041 (Ohio Ct. App.
Dec. 31, 2008) (third-party claim against sellers' agent and sellers after buyers were
sued by neighbors; new septic tank leach field was being built on neighbors' property;
jury returned $1200 verdict).
53
R.I. Gen. Laws. tit. 23, §§ 5-20.8-2, -13 (2007).
54
Id.
55
S.D. Codified Laws § 43-4-44 (2007).
56
Tenn. Comp. R. & Regs. 1260-2-.37 (2008).
24
D.
Misstatements of Square Footage and Different Methods of
Measurements Cause Disclosure Disputes Affecting the Value of a
Property.
While the failure to disclose information affecting the value of property has
moderate or higher current significance, according to about 60% of the survey
respondents, over two-thirds of the respondents believe this issue is likely to increase in
importance over the next two years.
(See Tables 18, 20.)
Almost 55% believe
additional training on this issue is needed. (See Table 22.)
The issue may have particular importance in a down market because agents do
not know what to do when values are declining. "Valuation claims take many forms,
many of which involve defects that would have been overlooked in a market in which
property values are rising."
The issue is "new to many [licensees] due to recent
devaluation in many areas." Other comments focused on consumer concerns:
•
"[It's] hard to properly evaluate [a property] in a rapidly declining market and
agents are eager for a sale."
•
"Based on the current economy, if prices go lower we will have a problem
convincing the buyer what the true value is and if they start going up we will be in
bidding wars again."
•
"Valuations are . . . suspect now . . . and buyers want to blame someone for their
investment."
•
"When property values remain steady or drop, people blame their Realtor for
selling them a bad deal."
25
Only one statute was located that directly addresses questions relating to the
value of the property. In Vermont, a disclosure statement must include "facts a licensee
reasonably believes may directly impact the future use or value of the property." 57
The case-law research retrieved 17 cases in which information affecting the
property's value was not disclosed and allegedly should have been. This number is
substantially higher than the number of cases collected for the 2007 Scan. (See Table
2.) A common situation is a misstatement of the square footage or acreage of the
property. 58 In fact, one of the respondents remarked on this problem, noting that the
method of determining square footage varied within his or her state, and suggesting a
single method be taught.
Another common situation involves overstatements of how
profitable a business is. 59
E.
An Emerging Problem with Imported Drywall May Lead to an Increased
Number of Disputes about Disclosure: Flooring and Walls.
The survey did not ask respondents about disclosure of the condition of flooring
or walls. Recent news reports, however, suggest this issue may emerge over the next
57
Vt. Real Estate Comm'n R. 4.5(a) (2008).
58
E.g., Waters v. Allegue, 980 So. 2d 314 (Miss. Ct. App. 2008); Très Chic in a Week,
L.L.C. v. Home Realty Store, 993 So. 2d 228 (La. Ct. App. 2008); Torres v. Fortune
Dev. Sales Corp., No. 06-00380 CA-11, 2008 WL 3833694 (Fla. Cir. Ct. Miami-Dade
County); Pleasant v. Bradford, 260 S.W.3d 546 (Tex. App.–Austin 2008).
59
E.g., Evans v. Singer, 518 F. Supp. 2d 1134 (D. Ariz. 2007); Orland v. Kukielka, 836
N.Y.S.2d 252 (App. Div. 2007); Rorig v. Thiemann, No. 1:05CV801, 2007 WL 2071909
S.D. Ohio July 17, 2007); Cowan v. Bontiago, No. 060103704, 2008 WL 4073308 (Pa.
Com. Pl. July 2, 2008); Kim v. Lee No. BC 362436, 2008 WL 2366500 (Cal. Super. Ct.
L.A. County Apr. 29, 2008).
26
two years as a source of disputes. 60 The potential problem is imported drywall that was
used in 2006 rebuilding homes damaged or destroyed by hurricanes during a shortage
of domestically manufactured gypsum drywall. The imported drywall is made from coal
ash, which exudes a corrosive gas that may be damaging electrical wiring and plumbing
in the wall behind the drywall. It also may cause respiratory problems for residents.
F.
A Variety of New and Amended Statutes and Rules Affect Licensees' Duty
to Disclose Information about the Condition of Property.
While the survey questionnaire sought information about a limited number of
Property Condition Disclosure issues, the legal research followed 23 separate
disclosure issues.
Many of the new statutes and regulations address the need to
disclose information about the following matters:
•
Military bases and installations 61
•
Nearby farms 62
•
Nearby airports 63
•
Private roads 64
60
See Michael Corkery, Chinese Drywall Cited in Building Woes, Wall St. J., Jan. 12,
2009, at A3; Chinese Drywall Poses Potential Risks, N.Y. Times Apr. 11, 2009.
61
Ariz. Rev. Stat. § 33-422 (2008); Va. Admin. Code tit. 135, Form (2007).
62
Cal. Bus. & Prof. Code §§ 1103.4, 11010 (2008); R.I. Gen. Laws tit. 23, § 5-20.8-2
(2008).
63
Cal. Bus. & Prof. Code § 11010 (2008); Minn. Stat. §§ 82.22, subd. 8, 513.56, subd. 3
(2007) (no duty to disclose airport zoning if S tells B where zoning regulations can be
found).
27
•
Human-caused environmental problems 65
•
Meth labs 66
•
Naturally occurring environmental conditions 67
•
Conservation easements 68
•
Energy-efficiency ratings for new dwellings 69
•
Liens and other interests recorded against the property 70
64
21 N.C. Admin. Code 58A.0114 (2007) (must disclose existence of agreements
relating to maintenance of private roads); Wash. Rev. Code § 64.06.020 (2007) (private
road or access easement must be disclosed).
65
Wash. Rev. Code § 64.06.020 (2007) (requiring disclosure of commercial or industrial
use of the property, soil or groundwater contamination, buried utility equipment,
transmission poles or transformers, illegal dumping).
66
Ark. Code § 8-7-1406 (2007) (no duty to disclose existence of lab after property is
remediated pursuant to §§ 8-7-1401 to -1407); La. Rev. Stat. §§ 9:3198(B), :3198.1
(2008) (law enforcement maintains website list of meth-contaminated properties, and
condition must be disclosed until property delisted, but statute does not create a cause
of action);Tex. Prop. Code § 5.008(b) (2007) (PCD statement amended to include meth
labs).
67
Colo. Rev. Stat. § 38-35.7-104 (2007) (source of potable water); Okla. Admin. Code
tit. 605, ch. 10, Appx. A (2008) (PCD statement amended to include flood disclosure);
Wash. Rev. Code § 64.06.020 (2007) (requiring disclosure of shorelines, wetlands,
flood plains, and water rights). See also Wash. Rev. Code § 64.06.015 (2007)
(promulgating new PCD Form for unimproved property, but it is not part of any
agreement or the representation of the licensee).
68
Md. Code Ann., Real Prop. § 10-705 (2007) (if property is subject to conservation
easement, purchase agreement must provide notice of that fact, separate from the
property condition disclosure statement, and give the purchaser the right to rescind the
agreement).
69
Kan. Stat. Ann. § 66-1228 (2007).
28
•
Other conditions that must be disclosed 71
Some states passed statutes that protect licensees from liability. In Nevada, for
example, an agent or broker does not have to investigate the condition of a property
unless he or she expressly agrees to do so in writing. 72
Virginia passed a statute
declaring that zoning and offsite adverse conditions are not "physical conditions" of the
property within licensees' duty to disclose. 73 In Connecticut, licensees do not have a
duty to disclose private hunting areas. 74
Washington passed a number of statutes relating to disclosure of environmental
conditions. In addition to those items noted above, Washington permits a buyer to
waive the right to receive a disclosure statement, but if the answer to any of the
environment-related questions on the statement would be "yes," the waiver does not
apply to that section of the disclosure statement and disclosure must be provided. 75
70
S.D. Admin. R. 20:69 PCD Statement (2008) (materials and services provided within
previous 180 days that might create a lien); Tex. Prop. Code § 5.016 (2007) (recorded
liens on residential property must be disclosed in separate statement; B may back out
after disclosure).
71
Cal. Code Regs. tit. 10, § 2790.9 (2008) (information relating to increased loan terms,
real-estate taxes, or insurance and the like must be disclosed on PCD statement); Wyo.
Stat. § 34-1-151 (2007) (PCD form must disclose existence of public utilities and
services such as water, sewer, and fire department; buyer may recover actual damages
for a willful or negligent failure to disclose easements).
72
Nev. Rev. Stat. § 645.252, subd. 49 (c) (2007).
73
See Va. Code 54.1-2131(B) (2008).
74
Conn. Gen. Stat. § 20-327g (2007).
75
Wash. Rev. Code § 64.06.010 (2007).
29
G.
Disputes Involving "As Is" Clauses May Increase as a Result of the
Increase in Sales of Bank-Owned Property.
The issue of "As Is" clauses is closely linked to Property Disclosure issues and
the prevalence of bank-owned property. One effect of the foreclosure crisis is that
properties are being sold without any disclosure at all, because the prior owners are not
part of the transaction. Thus, while about 63% of the survey respondents indicate that
"As Is" clauses have moderate or higher current significance, over 54% believe the
issue will increase in importance over the next two years. (See Tables 18, 20.) Just
over 50% of the respondents indicate there is a significant need for training on this
issue. (See Table 22.)
Several respondents believe that the increase in short sales and "Real Estate
Owned" (REO) sales will lead to an increase in disputes involving the meaning and
scope of "As Is" clauses. They are concerned that "agents are not explaining this
clause as well in light of all the foreclosures." Further, "it is difficult for a buyer to
appreciate the meaning of "as is," and understand that the seller is making absolutely
no warranties about the condition of the property."
Clients want to be released from responsibility for their
property. With values declining, no one wants to make
repairs. Agents need to understand how to explain what "AS
IS" really means in their state.
But other respondents state that an "as is" clause is meaningless when a purchase
agreement contains an inspection contingency or states that "disclosures are still
necessary even with [an] as-is [sale]." Another source of disputes may be that the as-is
30
clauses are simply not well drafted, leaving ambiguities—and thus an opening for legal
action.
Six cases involving as-is clauses were retrieved, and only one of these cases
ended in a plaintiff's verdict. In Hawkins, the plaintiff was extremely allergic to cats and
could not inspect the home she was planning to buy until after a thorough
"environmental cleaning." The cleaning was delayed until after the transaction closed,
and the plaintiff did not discover water damage until after she moved in. The crux of the
case was the allegation that the dual agent handling the transaction changed the terms
of the sale to an "as is" transaction without the buyer's consent. The jury returned a
verdict for $62,641. 76
Two cases settled for undisclosed amounts. In Richards, 77 the property was in
foreclosure and was sold "as is, no seller disclosure" by the lender. The lender had
already sold part of the parcel to a municipality for a road-widening project. The buyer
sued his agent and the seller and settled with his agent. The seller later obtained a
pretrial ruling that it was not liable. In M&B Villas, the broker settled with the buyer of an
apartment building before trial, and the trial ended in a defense verdict. 78
76
Hawkins v. Pridgen, No. BC326075, 2007 WL 2068585 (Cal. Super. Ct. L.A. County
Feb. 26, 2007).
77
Richards v. ABN AMRO Mtge. Group, Inc., 261 S.W.3 603 (Mo. Ct. App. 2008).
78
M&B Villas at Oak Hlls LLC v. Oak Hills Manor LP, No. 2004-CI-03425, 2008 WL
3853289 (Tex. Dist. Ct. Bexar County May 30, 2008).
31
In ERA Class.com, an Alabama appellate court decided that the principle of
"buyer beware" applied to the sale of "used" real estate and reversed a jury verdict for
the buyer. It reasoned that an "as is" clause negates the element of reliance a plaintiff
must prove to establish a claim of "fraud by mistake." 79
IV.
FRIVOLOUS LAWSUITS ARE EXPECTED TO INCREASE.
Nearly 40% of the survey respondents report that Frivolous Lawsuits are the
basis for a significant level of current disputes, and 53% believe that Frivolous Lawsuits
will increase during the next two years. (See Tables 17, 20.) The issue was not often
ranked among the top three current or future potential disputes, however. Similarly, it is
not on the list of significant training needs, though nearly 61% of the survey
respondents believe it is an area requiring some additional training. (See Table 23.)
The comments from survey respondents suggest that Frivolous Lawsuits are a
significant problem. "The vast majority of the claims raised against our company have
no basis in law or fact." "Virtually all of the suits we see fall into this category." Some
respondents linked the problem to falling home prices. "As home prices fall, the buyers
want it to be someone's fault." "Buyers are looking for ways to get out from under a
home that is perceived to be worth less than they paid for it." Another respondent noted
that "you can't force claimants to see the limitations on an agent's liability to the
claimants." A few respondents simply expressed their frustration with the system.
79
ERA Class.com., Inc. v. Stoddard, 987 So. 2d 1130 (Ala. Civ. App. 2007), cert.
denied (Ala. Dec. 21, 2007).
32
V.
•
"After property disclosure, frivolous claims are rampant—lawyers making
demands just because clients have damages is common and frustrating. No
specifics are given, just directions to forward the alleged damage claim to the
real estate company's E&O [insurer].”
•
"We see too much of them now and there doesn't seem to be anything out there
discouraging them."
COMMISSION DISPUTES AND PROCURING CAUSE WILL BE SIGNIFICANT
SOURCES OF DISPUTES, ESPECIALLY AS THE ECONOMY CONTINUES TO
AFFECT SALES AND BRING BANKS INTO TRANSACTIONS.
The issue of commission disputes and procuring cause is a significant source of
current disputes, according to 51% of the survey respondents; 57% of the respondents
rank it among their top three current disputes. (See Tables 18, 19.) The importance of
this issue is likely to increase. Nearly 74% of the respondents believe that the issue will
increase in importance over the next two years, and more than 63% ranked the issue
among their top three potential future issues. (See Tables 20, 21.) Not surprisingly,
62% believe there should be additional training on commission disputes and procuring
cause. (See Table 22.)
Several respondents commented that commissions are an ongoing source of
disputes between agents, and lead to the filing of ethics complaints and/or arbitration
proceedings.
The problem is more pronounced in the tightening economy.
"Our
economy is creating a shark-filled environment" and "the economic crisis invariably
exacerbates the frequency of such disputes." "In these difficult financial times, each
commission dollar is carefully guarded. Agents are forcing the issue on compensation,
33
whether it is earned or not." Simply stated, "brokers are fighting over a smaller pot of
money."
Procuring cause is another area of misunderstanding.
Several respondents
noted that licensees do not understand what it is, and that—along with fewer
transactions overall—leads to more disputes.
Another source of disputes may stem from short sales (where the sale price is
less than the outstanding debt) and so-called "Real Estate Owned" (REO) sales (where
the lender is the seller).
With these sales, the lender may attempt to reduce the
negotiated commission at the last moment, which leads to disputes.
Legislation and regulation on this issue was sparse.
Colorado has a rule
prohibiting licensees from filing a lien, recording a lis pendens (notice of pending
litigation), or any other cloud on merchantable title, in order to secure payment of a
commission. 80
Montana prohibits payments of commissions to unlicensed persons,
although payments to principals or reductions in commissions are permitted. 81
Kentucky has a rule prohibiting fee splits with out-of-state brokers, 82 but after a court
challenge, it added requirements for out-of-state commercial brokers to earn
commissions on transactions in Kentucky. 83
80
4 Colo Code Regs § 725-1, r. E-48 (2008).
81
Mont. Admin. R. 24.210.641(5)(z) (2008).
82
See 201 Ky. Admin. Regs. § 11:121(8) (2008).
83
Ky. Rev. Stat. §§ 324.020, .235–.238 (2008). See River Oaks Mgmt. v. Brown, No.
3:06-CV-00451-S, 2007 WL 2571909 (W.D. Ky. Sept. 4, 2007) (Commerce Clause
34
Two basic admonitions about commissions are highlighted by the case-law
research. First, of course, a commission agreement must be in writing. 84 Second,
while unlicensed brokers generally cannot recover commissions, as a matter of fairness,
a broker might be able to recover a commission if others take advantage of the broker's
work and then refuse payment on the grounds the broker was not properly licensed. 85
VI.
TECHNOLOGY ISSUES ARE EXPECTED TO INCREASE IN IMPORTANCE
OVER THE NEXT TWO YEARS.
While technology issues, taken together, are not a significant source of current
disputes, over 57% of the survey respondents believe these issues will increase in
significance over the next two years, and 52% believe there is a significant need for
training about technology issues.
challenge to prohibition on splitting fees with out-of-state broker); Kentucky Real Estate
Comm'n v. Hilliard Fin., LLC, 246 S.W.3d 910 (Ky. Ct. App. 2008) (addressing cash
advances to licensees while commissions are pending; court concluded they were not
prohibited commission splits). See also Baker v. Maclay Props. Co., No. 2006 CA
1000, 2007 WL 1300820 (La. Ct. App. May 4, 2007) (action for unjust enrichment
brought by in-state broker with cooperative brokerage agreement with out-of-state
broker; plaintiff sought 50% share of commissions, based on state statute; out-of-state
broker alleged statute was unconstitutional, but court concluded in-state broker failed to
prove elements of claim).
84
See Ripps v. Powers, No. 07-0832-CG-B, 2008 WL 5428195 (S.D. Ala. Dec.31,
2008) (trial court dismissed claim for portion of commission because it was based on an
oral contract and was barred by the statute of frauds); Original Log Homes of Minn. v.
Merrill R. Anderson Trust, No. A06-950, 2007 WL 1191700 (Minn. Ct. App. Apr. 24,
2007) (because there was no written contract, there could be no recovery).
85
See Sammarone v. Bovino, 928 A.2d 140 (N.J. Super. Ct. App. Div. 2007)
(unlicensed broker was permitted to sue for commission because developers had relied
on state licensing statute from outset to deprive plaintiff of collecting any commission,
which subverted purpose of act).
35
A.
Anti-solicitation Laws and Privacy Concerns May Be Implicated by New
VOWS Rules.
Anti-solicitation laws are not a significant source of current disputes, and less
than half (48%) of the survey respondents believe the issue has moderate or higher
current significance. (See Table 18.) Just under half of the survey respondents (49%)
believe the issue will increase in importance over the next two years, and nearly 46%
believe there is a significant need for training on this issue. (See Tables 20, 22.) The
survey data for Technology: Privacy is similar. Just over half the respondents (51%)
indicate that the issue has moderate or higher current significance, and more than 60%
believe the issue will increase in importance over the next two years. Almost 52%
believe there is a significant need for training about Privacy issues.
The comments suggest that both anti-solicitation laws and privacy concerns may
be implicated in the use of Virtual Office Websites (VOWS), because the new VOW
rules "will likely increase 'creative' Internet solicitation, which may conflict with laws."
Another respondent asserted that with VOWS, "the collection of personal information by
websites" will occur without licensees understanding it or receiving appropriate training.
(The topic of VOWS is discussed further in the Antitrust section.)
The 2007 Scan reported that anti-solicitation laws were a hot legislative issue in
2005 and 2006, but that activity has dropped off considerably. Whereas 22 statutes and
regulations were collected for the 2007 Scan, only 8 were collected for the current Scan.
36
(See Table 4.)
The statutes typically address do-not-call registries, in some cases
extending protection to cell phones and other, newer technology. 86
Legislation addressing privacy issues, as in the 2007 Scan, focuses on the
protection of personal information on business computer systems and how to react to
security breaches. 87 Here, too, the number of statutes and regulations collected for the
Scan has dropped considerably since 2007, from 47 to 7. (See Table 4.)
B.
State Internet Advertising Rules
Disputes involving state interest advertising rules are not currently significant,
and less than half (47%) of the survey respondents thought the issue has moderate or
higher significance. (See Tables 18, 19.) Nearly 63% of the respondents believe,
however, that the issue is likely to increase in importance over the next two years, and
nearly 57% believe additional training on this topic is needed.
Comments from
respondents suggest that licensees just do not know what the rules are, and that the
rules themselves are vague.
86
See, e.g., Ky. Rev. Stat. § 367.46951 (2007) ("zero-call" list now includes wireless
telephone numbers and covers national registry); N.D. Cent. Code § 51-28-01 (2007)
(do-not-call definitions include cell phones, broadband microwave, satellite and voiceover-internet service); Tex. Bus. & Com. Code § 44.002(9) (2007) (extends protection to
mobile phones).
87
See, e.g., 2008 Conn. Acts ch. 167 (not yet codified) (protection of personal
information stored on computer system); Iowa Code §§ 715C.1–.2 (2008) (addressing
security breaches, duties, remedies); Md. Code Ann., Com. Law §§ 14-3501 to -3508
(2007) (addressing private information held by businesses and breach of security
system); Okla. Stat. tit. 24, §§ 161–166 (2008) (requiring notification when computer
security system is breached); Va. Code § 18.2-186.6 (2008) (same); W. Va. Code
§§ 46A-2A-101 to -105 (2007) (addressing breach of security of consumer information).
37
Relatively few statutes and regulations on this issue were located.
North
Carolina requires websites to identify the broker and firm clearly and conspicuously, 88
and in Oklahoma, an associate licensee must have his or her sponsoring broker's
approval to post advertisements on websites. 89
VII.
ANTITRUST ISSUES ARE NOT A SIGNIFICANT SOURCE OF DISPUTES, BUT
ADDITIONAL TRAINING ON ANTITRUST ISSUES IS NEEDED.
Taken as a whole, the survey responses about Antitrust issues indicate that
these issues are not particularly significant to those who took the survey. In fact, 63%
of the respondents reported a "low" or "low-medium" frequency of current disputes
involving Antitrust issues, and 66% do not expect the issues to increase in importance
over the next two years. Few respondents ranked Antitrust issues among their top
three issues, but the respondents believe additional training is needed on all four
Antitrust issues. (See Tables 21-23.)
Here, too, the comments implicate licensees’ lack knowledge of, and
appreciation for, the issues. "Agents don't have a thorough understanding of antitrust."
Some respondents referred to recent scrutiny by the Justice Department. "No matter
what you do, it seems [that] we, the collective industry have a target on our back."
A
comment about Antitrust: Advertising linked market conditions to the government
scrutiny as a source of increased disputes: "As the market gets tighter [with] the DOJ
watching, there will be an increase."
88
21 N.C. Admin. Code 58A.0105 (2007).
89
Okla. Admin. Code § 605:10-9-4(b) (2007).
38
Comments about group boycotts may help focus training efforts.
•
"I still hear agents say, 'I'm not showing that listing because the commission is
too low!' "
•
"I cannot believe the e-mails agents send about vendors!"
•
"Unfortunately, agents don't understand that we don't participate in 'ordinary
commerce' (Preamble to the Code of Ethics) and bring their understanding of
'competition' from outside industries, leading to gross misstatements that break
the law due to their lack of training on how to compete professionally and
courteously."
The case-law research retrieved a few relevant items.
In Hackman, 90 the
plaintiffs alleged that various defendants had an anticompetitive conspiracy to exclude
them from the local real-estate market, including state and local Realtors® associations,
because they charged lower commissions. The trial court concluded that although a
claim of a "horizontal" boycott—a boycott among businesses at the same level of
distribution—was not stated, the plaintiffs did state a claim of antitrust conspiracy.
Individual Realtors® also were potentially liable on claims of defamation and
interference torts.
In Mountain Area Realty, a federal court in Virginia refused to dismiss an action
alleging that while one real-estate licensee had been given office space at a resort, the
plaintiff was shut out. 91 The plaintiff alleged a "vertical non-price restraint," that is, an
impediment on competition imposed by an actor higher up on the chain of distribution,
90
Hackman v. Dickerson Realtors, Inc., 557 F. Supp. 2d 938 (N.D. Ill. 2008). See also
Hackman v. Dickerson Realtors, Inc., 520 F. Supp. 2d 994 (N.D. Ill. 2008).
91
Mountain Area Realty, Inc. v. Wintergreen Partners, Inc., No. 3:07CV00016, 2007 WL
4561293 (W.D. Va. Dec. 21, 2007).
39
and contended that the restraint harmed consumers in the form of higher commissions,
membership fees and rental fees at the resort.
The key development, of course, is that the Department of Justice and NAR
settled their dispute over NAR's "virtual office websites" (VOWS) rules. 92 As a result of
the settlement, local Realtor® associations' MLSs have adopted NAR's new rules
relating to how MLS data may be used and displayed on a VOW.
VIII.
THIRD-PARTY LIABILITY IS NOT A PRESSING AREA OF CONCERN.
Taken as a whole, the topic of Third-Party Liability was not identified as a
significant source of current disputes, but survey respondents believe these issues will
increase in importance over the next two years. (See Tables 11, 14.) Because these
issues typically were not highly ranked, comments from respondents are sparse.
A.
Inspectors
While fewer than 38% of the survey respondents indicated that the liability of
inspectors is a significant source of current disputes, over 65% believe the issue has
moderate or higher current significance, and over 56% believe the issue is likely to
increase in importance over the next two years.. (See Tables 17, 18, 20.) Just over
46% of the respondents believe there is a significant need for training on this issue.
(See Table 22.)
92
U.S. v. Nat'l Ass'n of REALTORS®, No. 05-C-5140, 2008 WL 5411637 (N.D. Ill. Nov.
18, 2008).
40
B.
Appraisers
The survey results indicate that the liability of appraisers is not currently
significantly or moderately important, a surprising result given the importance of
appraisers in the current economic environment.
The issue is likely to increase in
importance over the next two years, however, according to 52% of the survey
respondents. (See Tables 17, 18, 20.) Approximately 41% of the respondents believe
there is a need for additional training on this issue. (See Table 22.)
IX.
FAIR-HOUSING ISSUES ARE NOT SEEN AS AREAS OF INCREASED
LIABILITY, THOUGH THEY WARRANT ON-GOING TRAINING.
Fair Housing issues, as a whole, do not seem to be significant to the survey
respondents. (See Tables 11, 13-15.) Only Race Discrimination was identified as a
source of a moderate number of current disputes.
(See Table 18.)
Two different
issues, Sexual Orientation Discrimination and Handicap Discrimination, were on the list
of top current issues, but relatively few respondents ranked them. No Fair Housing
issues were identified as likely to increase in importance over the next two years. (See
Tables 17, 19, 20.) Nevertheless, most Fair Housing issues are on the list of issues
needing some additional training. (See Table 23.)
Fair Housing issues, were, however, a frequent topic of legislation. Colorado, 93
Iowa, and Vermont have made "sexual orientation" a protected class under their
93
Colo. Rev. Stat. § 24-34-502 (2008) (adding sexual orientation to prohibition on unfair
housing practices). See also Colo. Rev. Stat. § 24-34-301(7) (2008) (defining sexual
orientation, which includes "transgender status or another person's perception thereof").
41
human-rights statutes. Vermont and the District of Columbia have extended protection
to another distinct group, those with gender-identity issues. 94
North Carolina now
requires that the nondiscrimination provision in agency agreements extend to
prospective parties, as well as parties, to a transaction. 95
Ohio requires that a Fair-
Housing notice be included in the required agency-relationships disclosure statement. 96
Other states have focused on lending practices.
Illinois, for example, has a
statute that specifically prohibits denials or refusals to lend based on the borrower's
protected status. 97
Iowa has added sexual orientation and gender identity to the
protected classes in its ban against unfair credit practices. 98 Maine provides that limits
on lending are appropriate when they are "consistent with business necessity," but
cannot be based on the borrower's protected class. 99
94
See Vt. Stat. Ann. tit. 9, § 4503(a) (2007); D.C. Code § 2-1411.02 (2008). See also
Vt. Stat. Ann. tit. 1, § 144 (2007) (defining "gender identity).
95
21 N.C. Admin. Code 58A.0104 (2007) (agency agreements must have a
nondiscrimination provision that extends to prospective parties as well as parties).
96
Ohio Admin. Code 1301:5-01 (2008).
97
815 Ill. Comp. Stat. 120/3 (2008).
98
Iowa Code § 216.10 (2007).
99
Me. Rev. Stat. tit. 5, § 4583 (2007).
42
X.
SURVEY RESPONDENTS' CONCERNS ABOUT EMPLOYMENT ISSUES
FOCUS ON INDEPENDENT CONTRACTORS, DEFAMATION, AND
PERSONAL ASSISTANTS.
Employment issues as a whole did not receive a strong reaction from survey
respondents. (See Tables 11-16.) Nor did any one particular issue stand out as having
current significance. (See Tables 17-22.) Six issues have moderate training needs:
Personal Assistants, Independent Contractors, Defamation, Harassment, Employment
Discrimination, and Wrongful Termination. (See Table 23.) Three of these issues may
be of particular concern: Independent Contractors, Defamation, and Personal
Assistants.
A.
The Status of Agents as Independent Contractors Is Under Increased
Scrutiny.
Only about 13% of respondents report that disputes involving independent
contractors are a source of a significant number of current disputes; about 36% report
them as a source of a moderate number of current disputes.
Only 25% of the
respondents believe this issue is likely to increase in importance, but it is an area
needing some additional training. (See Table 23.)
Comments from the respondents note that "some brokers treat agents like
employees," and "the IRS is cracking down on independent-contractor arrangements
that are really employer arrangements."
One common factual situation in which the issue of a licensee's employment
status arises is motor-vehicles accidents in which a licensee's driving injures the
plaintiff.
None of the cases located for the Scan concluded that the independent-
43
contractor licensee was an employee, and, as a result, the brokers have not been found
vicariously liable for the licensee's driving. 100
Another factual situation involving a licensee's employment status that seems to
be emerging involves wage-and-hour claims.
Although most of the cases located
addressed whether the claimant was "exempt" or "nonexempt" 101 —a finding that affects
the claimant's right to recover overtime pay, among other things—one case turned on a
finding that the claimant was an independent contractor and therefore did not have a
claim to overtime wages. 102
B.
Defamation Is Perceived as Needing Additional Training.
Defamation in the context of employment was not identified as particularly
significant, either as a source of current disputes or as a source of future disputes;
however, nearly 53% of the respondents believe Defamation is an area needing some
additional training. (See Table 23.)
The one comment from the survey pinpoints a potential problem:
100
See, e.g., Oliveira-Brooks v. Re/Max Int'l, Inc., 865 N.E.2d 252 (Ill. App. Ct. 2007)
(national franchisor entitled to summary judgment because no agency relationship
existed between licensee-driver and national franchisor); Ackley v. Caputo-Belcher, No.
05CV6211, 2007 WL 1800555 (Kan. Dist. Ct. Johnson County Mar. 2, 2007) (jury
decided licensee was an independent contractor after court declined to issue pretrial
ruling on question); Hesse v. Long & Foster Real Estate, Inc., No. 1:07-cv -00603-LMBTCB, 2007 WL 5173597 (E.D. Va. Dec. 20, 2007) (broker not liable for agent's driving).
101
See § D below.
102
See Perdomo v. Ask 4 Realty & Mgmt., Inc., 298 Fed. Appx. 820 (11th Cir. 2008).
44
Agents don't understand their liability and responsibility when
participating in blogs, emailing, and general use of the
Internet. Professionalism is non-existent on the Internet as
REALTORS use it.
(Emphasis added.)
One case addressed a defamation claim. In Downing v. Burns, 103 the plaintiff, an
office manager at a Re/Max franchise, resigned from her job and took a new job with
another agency. The Re/Max franchise owners told the plaintiff's new employer that
she had stolen checks and proprietary information.
The franchise owners also
threatened to sue the new employer unless it fired the plaintiff, the so the new employer
fired her. The plaintiff sued her former employer alleging defamation and a claim of
tortious interference with contract. The defendants contended that their statements to
the new employer were legally privileged, but the jury returned a verdict for $100,000.
C.
The Issue of Personal Assistants Is Another Area Where More Training Is
Needed.
The issue of Personal Assistants was not identified as particularly significant,
either as a source of current disputes or as a source of future disputes; however, nearly
65% of the respondents believe this is an area needing some additional training. (See
Table 23.)
Respondents believe that using unlicensed personal assistants can lead to
additional disputes. "No one knows the rules—if there are any—[and it's] pretty fast and
loose at this time."
103
Downing v. Burns, No. 07-DCV-154732, 2008 WL 5525368 (Tex. Dist. Ct. Fort Bend
County Nov. 20, 2008).
45
There is a rise in the number of personal assistants and lack
of supervision. In the next two years, when the market
comes back, there will be more and more use of personal
assistants.
D.
Wage-and-Hour Claims Under the Fair Labor Standards Act May Be
Another Emerging Area of Liability for Brokers.
The case-law research retrieved several cases in which licensees made claims
against brokers under the Fair Labor Standards Act (FLSA) or similar state laws.
Although none of the cases has ended in a finding that the broker was liable, most have
not yet reached final judgment. These cases include:
104
•
Maddock A sales agent of a community development home company worked on
commission and alleged that he was wrongly classified as an exempt "outside
salesman" and was denied required breaks. The court so far has denied classaction certification. 104
•
Cannon The plaintiffs were hired to work on commission, but never received
either paychecks or commissions and were not allowed to participate in the
employer's employee benefit plans. In ruling on a motion to dismiss, the court
allowed most of the case to go forward. 105
•
Scachitti The plaintiff made claims for wages, overtime pay, and commissions,
and the validity of those claims had not been determined. 106
Maddock v. KB Homes, Inc., 248 F.R.D. 229 (C.D. Cal. 2007).
105
Cannon v. Douglas Elliman, LLC, No.06 Civ. 2092 (NRB), 2007 WL 4358456
(S.D.N.Y. Dec. 10, 2007).
106
Scachitti v. DMC Real Estate Dev., Inc., No. 6:07-CV-1003-ORL-19DAB, 2008 WL
4853617 (M.D. Fla. Nov. 10, 2008).
46
E.
An Age-Discrimination Claim, Arising in the Context of Downsizing,
Resulted in a $1.85 Million Verdict.
One employment case resulted in a large verdict. In Spacek 107 an executive in
charge of developing the employer's corporate-relocation business was laid off during a
reorganization after her employer was acquired by another real-estate company. She
had just returned from a leave of absence for cancer treatment. She alleged she was
terminated because of her age and because she had been sick.
She presented
evidence that a principal of the new owner suggested that the company was "in a
downward spiral because of ageing and sicker management." 108
The new owner
defended its action by arguing that it reduced the number of employees because of the
slump in the housing market. The defendants pointed out that the plaintiff was not
replaced, but her duties had been reassigned. Although several of her claims were
dismissed before trial, a jury returned a $1,850,000 verdict on the age-discrimination
claim. The defendant has appealed.
XI.
DISPUTES INVOLVING STATE DECEPTIVE-PRACTICES AND CONSUMERPROTECTION STATUTES REMAIN A SOURCE OF LIABILITY FOR
LICENSEES.
Over 54% of the survey respondents identified DTPA/Fraud as having a
moderate level of current disputes, and 50% believe the number of disputes will
increase over the next two years. (See Tables 18, 20.) Nearly 47% of the respondents
107
Spacek v. Realty One, Inc., No. CV-06-607379, 2008 WL 3089257 (Ohio Com. Pl.
Cuyahoga County June 2, 2008).
108
Id. at *2.
47
put DTPA/Fraud on the list of significant training needs. (Table 22.) The real-estate
commissioners also identified DTPA/Fraud as a significant issue over the last two years.
(Table 10.)
The topic ranges widely, and so do the comments from survey respondents.
Some comments were general: "too many [licensees] . . . go to the dark side" in order to
make a living. Others pointed to particular problems, such as the need to have "literally
accurate" advertising. Part of the concern may be based on the treble-damages and
attorney's-fee provisions in state statutes, making it one of the "fastest growing
segments of claims." Another respondent pointed to an issue that frequently arose in
the case-law research: mortgage fraud and "mortgage rescue" scams. In these cases,
real-estate licensees sometimes receive a commission or other payment in the context
of helping plaintiffs obtaining financing, or finding a "straw buyer" to hold title to avoid
foreclosure by the original lender. 109
109
See, e.g., Yslas v. Romero, No. B204762, 2008 WL 5394944 (Cal. Ct. App. Dec. 1,
2008) (broker purchased property from distressed owner and gave homeowner option
to repurchase; homeowner defaulted on option and broker sold property; homeowner
alleged broker forged her name on the deed; case ended in defense verdict); Guest v.
Rose, No. B189582, 2007 WL 2758640 (Cal. Ct. App. Sept. 24, 2007) (refinancing of
elderly homeowner's mortgage stripped her of title; real-estate licensee was found
liable, along with person who acquired the property, for $275,175 verdict, including
$169,000 in punitive damages and fees); Conn. v. Royal Fin. Servs., LLC, No.
CV074032754, 2008 WL 4683861 (Conn. Super. Ct. Oct. 3, 2008) (mortgage fraud
alleged against various real-estate licensees based on practice of referring clients to
particular mortgage broker, who falsified loan applications); Sahni v. Emerald Mtge.
Corp., No. B204071, 2008 WL 5394937 (Cal. Ct. App. Nov.19, 2008) (plaintiff seller
asserted claims against many defendants, including real-estate licensee, arising out of
mortgage rescue scam; appellate court reversed order dismissing case).
48
The case law research located 68 cases addressing DTPA and Fraud. Fifty of
these cases ended with a determination of liability. Many of these cases were propertycondition disclosure cases in which a DTPA claim was alleged. 110 In all, 29 cases were
resolved in favor of the licensee and 20 ended in verdicts for the plaintiffs. Two of the
top-ten verdicts included claims based on a state deceptive-practices act. (See Table
8.)
•
Aquino A number of rental homes were offered for sale and the broker stated that
they were ready to rent. Instead, the properties were derelict and had inflated
appraisals. The plaintiff alleged violations of the federal racketeering laws and
state statutes. The verdict awarded $1,010,692 in compensatory damages and
$4 million in punitive damages. 111
•
Perez Mortgage-fraud case in which a real-estate broker persuaded the plaintiff
to refinance her house and use the cashed-out equity to invest in real estate
ventures he selected. After the transaction closed, she did not hear from him for
over two months, and he never made good on his promises to her. The court
concluded that defendants committed civil theft. The defendants, including a
real-estate licensee, did not appear in court and judgment was entered in their
110
See e.g., Sutton v. Ebby Halliday Real Estate Inc., No. 70049-86, 2007 WL 4885412
(Tex. Dist. Ct. Kaufman County Sept. 6, 2007) (chronic flooding on property was not
disclosed to buyers; after being sued, seller sued his agent alleging that the agent failed
to protect him from liability for flood damage by not presenting flood-disclosure form to
buyers during negotiations; buyers were awarded $1,328,000); Bloor v. Fritz, 180 P.3d
805 (Wash. Ct. App. 2008) (agent had actual knowledge property had been used for
illegal drug manufacturing and failed to disclose that fact to plaintiffs; damage award
included $10,000 in punitive damages and $13,907 in attorney's fees); Giddeon v.
Weekley Homes, L.P., No. 2003-CI-14883, 2007 WL 5122969 (Tex. Dist. Ct. Bexar
County Dec. 20, 2007) (undisclosed pinhole leaks in copper pipes were basis of
$74,803 verdict).
111
Aquino v. Goldfadim, No. C-02-37203, 2008 WL 3088833 (Md. Cir. Ct. Carroll
County Mar. 24, 2008).
49
absence. The statute authorized treble damages and the verdict totaled
$546,113.43, including about $5000 in fees and costs. 112
XII.
RESPONDENTS' CONCERNS ABOUT ETHICS RELATE TO ETHICS IN
GENERAL RATHER THAN TO HOW COURTS ENFORCE AND RELY ON THE
NAR CODE OF ETHICS.
Although slightly less than 30% of the survey respondents reported that Ethics
issues were a significant source of current disputes, more than 38% believe Ethics
issues will increase in importance over the next two years, and nearly 46% believe there
is a significant need for training about ethics. (See Tables 14, 16.) Of the two specific
issues in this topic, Enforcement of NAR's Code of Ethics by Courts is more pressing to
the survey respondents, with nearly 36% reporting a significant number of current
disputes and over 48% indicating a likely increase in the importance of the issue over
the next two years. (See Tables 17, 20.) In fact, about 53% of the survey respondents
believe there is a significant need for training on Enforcement of NAR's Code of Ethics
by Courts. (See Table 22.)
The respondents' comments indicate, however, that they are concerned about
ethics issues generally, rather than the precise issues defined for the survey—
enforcement of and reliance on the code of ethics by courts. Instead, they addressed
enforcement by local boards and the need for training. One respondent noted, "this is a
crucial aspect of our profession," and another thought there should be a "continual
reminder [of] how important good ethics are to our industry." One did not think training
112
Perez v. Cimini, No. CV075011036S, 2008 WL 1823065 (Conn. Super. Ct. Apr. 4,
2008).
50
had much effect: "even with the NAR training program, many agents don't have a clue."
Some believe that the tight economy will cause some agents and brokers to cut corners.
"Fewer buyers for the next few years will cause some licensees to push the envelope of
ethics," and "agents who are not full time in this market tend to ignore rules in order to
get the deal." Others pointed out that ethics issues typically arise in "interbroker/agent
relationships in sales" and in the context of procuring cause. Two respondents had
specific suggestions:
•
"The Association should police the code—not all Realtors will call someone on
the rug for a violation."
•
"The system, while somewhat effective, needs to be more transparent and easier
for agents to report as well as other Realtors to see and learn from others'
mistakes."
XIII.
LICENSING ISSUES
Licensing issues are the basis of a moderate number of current disputes,
according to 56% of the survey respondents, and more than 48% believe these issues
are likely to increase in importance. (See Tables 18, 20.) More than 45% believe there
is a significant need for training about licensing issues.
It is not clear what such training should involve, however.
One respondent
pointed out that "there are a number of complaints as regards not complying with
licensing and entities not being licensed that ought to be." Another noted that there is
an "increasing variety of methods in providing brokerage services," and questions about
which ones need to be licensed and by whom are only going to increase.
Other
comments on this issue suggest that it is "too easy to obtain a broker's license," and "we
51
need to be constantly reminded about [the] license law [and] need more continuing
education."
XIV.
MORE TRAINING ON RELATIONSHIPS BETWEEN AFFINITY GROUPS AND
REAL-ESTATE BROKERAGES IS SUGGESTED.
Thirty-one percent of the survey respondents indicated that issues relating to
Affinity Groups are the source of a significant number of current disputes, and 33%
ranked this issue in their top three current issues. (See Tables 11 and 13.) Nearly 45%
believe the issue will increase in importance during the next two years, though only 20%
of those ranking Affinity Groups ranked it among their top three potential issues. (See
Tables 14 and 15.) Almost 45% indicate there is a significant need for training on this
issue. (See Table 16.)
Comments on this issue were sparse. One person stated that "there need[s] to
be clearer guidelines on what is acceptable and what is not." Another stated, "Everyone
is looking for other ways to make it, so it stands to reason that this might come up in the
context of disputes too."
One case was case located addressing this issue. In Baird & Warner Residential
Sales, Inc. v. Cendant Mobility Servs., Inc., 113 a broker alleged breach of "strategic
alliance agreement" it had with Cendant. At issue were referral fees, the contract's
"deliverable business" guarantee, and how to handle situations in which a client
requested using a different broker. The trial court entered judgment for Cendant on a
113
Baird & Warner Residential Sales, Inc. v. Cendant Mobility Servs., Inc., No. 04 C
6788, 2007 WL 4365360 (N.D. Ill. Dec. 13, 2007).
52
claim that Cendant did not provide the broker with the required level of available
"affinity" referrals. The remaining claims relating to referral fees and the "deliverable
business" guarantee were permitted to proceed to trial.
XV.
LICENSING OF RELOCATION COMPANIES
Relocation companies are not a significant source of current disputes, and they
are not likely to be significant during the next two years.
Only 22% of the survey
respondents indicated that this issue was currently significant, and only 26% believe it is
likely to increase in significance over the next two years. (See Tables 11 and 14.)
Nobody ranked this issue in their top three current issues, and of the eight who ranked it
as a potential issue, only two (25%) placed it in their top three, without making any
comments.
Two cases retrieved in the legal research involved relocation companies, but
neither ended with a determination of liability. 114
114
See Chermak v. Wu, No. 62-C6-06-007631, 2007 WL 1760570 (Minn. Dist. Ct.
Ramsey County Jan. 10, 2007) (buyer discovered sewage in basement—related to a
problem with the plumbing—and sued the broker, the relocation company, and the
sellers; the relocation company settled for $4500, the broker and the sellers each
settled for $3000); Asuamah v. Haley, 666 S.E.2d 426 (Ga. Ct. App. 2008) (seller was a
relocation company; buyer alleged mold was not disclosed; appellate court reversed
summary judgment for relocation company, because the defect in the property was not
readily discoverable and the relocation company ignored engineer's recommendation
that defect causing water intrusion be repaired), cert. granted (Ga. Feb. 10, 2009).
53
Appendices
Appendix 1: Legal Research and Survey Data.....................................................App. 1-1
Appendix 2: Cases ...............................................................................................App. 2-1
Appendix 3: Statutes and Regulations .................................................................App. 3-1
Appendix 4: Research Method .............................................................................App. 4-1
Exhibit A
Issue Descriptions ..................................................................App. 4-9
Exhibit B
Survey Form.........................................................................App. 4-27
Appendix 1: LEGAL RESEARCH AND SURVEY DATA
TABLE 1
CASES CATEGORIZED BY MAJOR TOPICS
WITH COMPARISONS TO 2007 DATA
2007
Count
2009
Count
Δ
1
1
0
100
117
+17
Americans with Disabilities Act
2
2
0
Antitrust
19
15
-4
Employment
54
37
-17
Ethics
4
0
-4
Fair Housing
73
72
-1
Property Condition Disclosure
132
151
+19
RESPA
52
102
+50
Technology
12
3
-9
Third-party Liability
32
21
-11
2007
Count
2009
Count
Δ
Agency: Dual Agency
16
22
+6
Agency: Buyer Representation
19
33
+14
Agency: Transactional/Non-agency
1
1
0
Agency: Vicarious Liability
1
2
+1
Major Topic
Affinity Groups
Agency
TABLE 2
DISTRIBUTION OF CASES BY ISSUE
WITH COMPARISONS TO 2007 DATA
Issue
App 1-1
2007
Count
2009
Count
Δ
Agency: Disclosure of Confid. Info.
after Term. of Agency Relationship
0
1
+1
Agency: Breach of Fiduciary Duty
53
50
-3
Agency: Disclosure of Financial
Ability
1
2
+1
Agency: Agency Disclosure
0
2
+2
Agency: Other
6
4
-2
Disclosure: Structural Defects
13
21
+8
Disclosure: Sewer/Septic
11
16
+5
Disclosure: Asbestos
1
0
-1
Disclosure: Lead-based Paint
1
1
0
Disclosure: Mold
14
16
+2
Disclosure: Roof
9
6
-3
Disclosure: Synthetic Stucco
2
0
-2
Disclosure: Flooring/Walls
0
6
+6
Disclosure: Plumbing
6
7
+1
Disclosure: HVAC
3
1
-2
Disclosure: Electrical System
2
0
-2
Disclosure: Valuation
3
17
+14
Disclosure: Insects/Vermin
11
6
-5
Disclosure: Boundaries
9
14
+5
Disclosure: Zoning
12
8
-4
Disclosure: Off-Site Adverse
Conditions
3
6
+3
Disclosure: Stigmatized Property
0
1
+1
Issue
App 1-2
2007
Count
2009
Count
Δ
Disclosure: Meth Labs
0
2
+2
Disclosure: Environmental
9
7
-2
Disclosure: Other
24
16
-8
Employment: Harassment
6
3
-3
Employment: Age Discrimination
5
1
-4
Employment: Sex Discrimination
6
5
-1
Employment: Race Discrimination
3
1
-2
Employment: Wrongful Termination
4
3
-1
Employment: Defamation
3
1
-2
Employment: Independent
Contractors
6
10
+4
Employment: Workers'
Compensation
0
1
+1
Employment: Other
15
12
-3
Fair Housing: Sex Discrimination
15
2
-13
Fair Housing: Race Discrimination
55
24
-31
Fair Housing: National Origin
Discrimination
12
4
-8
Fair Housing: Religious
Discrimination
3
0
-3
Fair Housing: Familial Status
Discrimination
13
5
-8
Fair Housing: Handicap
Discrimination
55
25
-30
Fair Housing: Source of Income
Discrimination
8
10
+2
Issue
App 1-3
Issue
2007
Count
2009
Count
Δ
Fair Housing: Advertising and Target
Marketing
1
1
0
Fair Housing: Other
16
1
-15
ADA: Employment
2
2
0
Technology: State Internet
Advertising Rules
0
1
+1
Technology: Other
12
2
-10
Antitrust: Group Boycotts
0
5
+5
Antitrust: Price-fixing
3
1
-2
Antitrust: Tying Agreements
8
3
-5
Antitrust: Other
6
6
0
RESPA: Disclosure of Settlement
Costs
11
16
+5
RESPA: Kickbacks
25
69
+44
RESPA: Affiliated Business
Arrangements
5
15
+10
RESPA: Other
9
2
-7
Third-Party Liability: Appraisers
13
3
-10
Third-Party Liability: Inspectors
10
9
-1
Third-Party Liability: Other
8
3
-5
Sign Ordinances
1
2
+1
DTPA/Fraud
66
68
+2
"Flipping"
4
2
-2
"As-Is" Clauses
6
6
0
153
164
+11
Commission Disputes
App 1-4
2007
Count
2009
Count
Δ
Lockboxes
0
1
+1
Escrow
9
3
-6
Frivolous Lawsuits
13
12
-1
Ethics: Court Reliance on Code of
Ethics
4
0
-4
Relocation Companies
5
2
-3
Affinity Groups
1
1
0
Licensing Issues
19
24
+5
Breach of Contract
25
22
-3
Trademark Issues
4
6
+2
Section 1031 Exchanges
3
5
+2
Miscellaneous
49
42
-7
Issue
TABLE 3
DISTRIBUTION OF STATUTES AND REGULATIONS
BY MAJOR TOPIC WITH COMPARISONS TO 2007 DATA
2007
Count
2009
Count
Δ
Agency
143
144
+1
Antitrust
5
0
-5
Fair Housing
44
71
+27
87
50
-37
RESPA
9
5
-4
Technology
77
21
-56
2
4
+2
Major Topic
App 1-5
TABLE 4
DISTRIBUTION OF STATUTES AND REGULATIONS
BY ISSUE WITH COMPARISONS TO 2007 DATA
Count
2007
Count
2009
Δ
Agency: Dual Agency
13
11
-2
6
17
+11
Agency: Designated Agency
20
11
-9
Agency: Transactional/Non-agency
19
10
-9
Agency: Subagency
6
0
-6
Agency: Discl. of Confidential Info.
2
5
+3
0
2
+2
3
8
+5
Agency: Financial Ability
1
1
0
21
19
-2
Agency: Minimum Service
Agreements
13
13
0
Agency: Other
42
47
+5
3
0
-3
7
5
-2
Disclosure: Radon
2
0
-2
Disclosure: Asbestos
1
0
-1
Disclosure: Lead-based Paint
1
1
0
Disclosure: Mold
4
0
-4
Disclosure: Roof
3
0
-3
Disclosure: HVAC
4
0
-4
Issue
App 1-6
Count
2007
Count
2009
Δ
0
1
+1
1
2
+1
Disclosure: Zoning
3
2
-1
Disclosure: Off-site Adverse
Conditions
12
9
-3
5
3
-2
Disclosure: Stigmatized Property
2
0
-2
Disclosure: Megan's Laws
3
0
-3
Agency: Electro-magnetic Fields
0
1
+1
Disclosure: UST
1
1
0
Disclosure: Environmental
10
9
-1
Disclosure: Other
25
16
-9
1
4
+3
2
3
+1
Fair Housing: National Origin Discrim.
0
3
+3
Fair Housing: Religious Discrimination
1
2
+1
Fair Housing: Familial Status
Discrimination
3
2
-1
Fair Housing: Handicap Discrimination
9
10
+1
Fair Housing: Sexual Orientation
Discrimination
7
13
+6
Discrimination
3
2
-1
Marketing
0
3
+3
Fair Housing: Other
18
29
+11
Issue
App 1-7
Count
2007
Count
2009
Δ
Technology: Internet Advertising
8
6
+2
Technology: Privacy
47
7
-40
Technology: Anti-solicitation Laws
22
8
-14
Antitrust: Advertising
2
0
-2
Antitrust: Other
3
0
-3
Costs
2
3
+1
RESPA: Kickbacks
1
1
0
Arrangements
3
1
-2
RESPA: Other
3
0
-3
Third-party Liability: Appraisers
1
2
+1
Third-party Liability: Inspectors
0
2
+2
Third-party Liability: Other
1
0
-1
Sign Ordinances
10
8
-2
Commission Disputes
16
12
-4
Miscellaneous
28
30
+2
Issue
App 1-8
TABLE 5
DISTRIBUTION OF CASES BY LIABILITY
Count
Percent of
Total
Agent/Broker Found Liable
78
30.71%
Agent/Broker Found Not Liable
176
69.29%
Determination of Liability
TABLE 6
DISTRIBUTION OF CASES AWARDING DAMAGES BY STATE
State
Count
Percentage
State
Count
Percentage
California
14
17.95%
District of Columbia
1
1.28%
Texas
10
12.82%
Georgia
1
1.28%
Florida
9
11.54%
Louisiana
1
1.28%
Washington
6
7.69%
Massachusetts
1
1.28%
Maryland
5
6.41%
Michigan
1
1.28%
New Jersey
4
5.13%
Minnesota
1
1.28%
Ohio
4
5.13%
Mississippi
1
1.28%
Connecticut
3
3.85%
Missouri
1
1.28%
Pennsylvania
3
3.85%
Nebraska
1
1.28%
Arizona
2
2.56%
North Carolina
1
1.28%
Illinois
2
2.56%
South Carolina
1
1.28%
New York
2
2.56%
Tennessee
1
1.28%
Colorado
1
1.28%
Virginia
1
1.28%
App 1-9
TABLE 7
DISTRIBUTION OF CASES AWARDING
DAMAGES BY AMOUNT
Amount
Count
Percentage
$5 million or more
2
2.56%
$1 million to $4,999,999
3
5.13%
$500,000-999,999
3
3.85%
$100,000-499,999
27
34.62%
$50,000-99,999
12
15.38%
$10,000-49,999
14
17.95%
Under $10,000
14
17.95%
Unknown
3
2.56%
TABLE 8
TEN LARGEST DAMAGE AWARDS
Damage
Award
$8,795,140
$5,010,962
Issue
Disclosure of Financial Ability to
Purchase or Rent
DTPA/Fraud
$3,675,834
Escrow
$2,206,087
Breach of Contract
$1,850,000
$878,000
Breach of Contract
Case
State
Year
Dallas Bayou
TX
2008
Aquino
MD
2008
Broadmoor
CO
2007
ERA
Franchise Sys.
v. Brager
CA
2007
Spacek
OH
2008
Buntz
MN
2008
App 1-10
Damage
Award
Issue
Case
State
Year
Schlimmer
TX
2007
$652,000
Breach of Fiduciary Duty;
Disclosure: Flooring/Walls, Roof
$546,731.88
DTPA/Fraud
Perez
CT
2008
$392,000
Disclosure: Other
Whittle
FL
2007
$347,351.59
Breach of Fiduciary Duty; Mold;
DTPA/Fraud
Carmody
TX
2007
TABLE 9
FIVE LARGEST SETTLEMENTS
Settlement
Amount
Issue
Case
State
Year
In re Community
Bank
PA
2007
Watts
CA
2007
Sampson
CA
2007
$41,100,000
RESPA: Kickbacks
$450,000
Disclosure: Mold
$450,000
Dual Agency, Disclosure:
Valuation, Zoning
$35,000
Disclosure: Mold
Poyner
CA
2007
$30,000
Disclosure: Mold
Leis
NJ
2007
App 1-11
TABLE 10
COMMISSIONERS' DATA:
ISSUES MOST OFTEN FORMING THE BASIS OF
DISPUTES INVOLVING REAL ESTATE PROFESSIONALS 1
Issue
Last 2 Years
%
No.
Current
%
No.
Next 2 Years
%
No.
Agency: Breach of Fiduc. Duty
38%
10
42%
11
38%
10
Agency: Dual Agency
35%
9
31%
8
15%
4
27%
7
23%
6
19%
5
DTPA/Fraud
27%
7
27%
7
19%
5
Escrow Mishandling
23%
6
19%
4
12%
3
19%
5
19%
5
8%
2
Commission Disputes/Procuring
Cause
15%
4
8%
2
15%
4
"Disclosure" 2
15%
4
19%
5
23%
6
12%
3
15%
4
27%
7
Agreements
8%
2
4%
1
8%
2
Tech.: State Internet Adv'g Rules
8%
2
8%
2
8%
2
1
The commissions were given a list of issues and were asked to name the three issues
that most often formed the basis of disputes involving real estate licensees over the last
two years and today, and the three issues that they thought would form the basis of
disputes most often in the next two years. Twenty-six states responded.
2
Several commissions stated merely "Disclosure" without specifying whether they were
referring to Agency Disclosure, Property Condition Disclosure, or some other sort of
disclosure. Because there was no way to ascertain what was intended, these answers
were grouped together.
App 1-12
Issue
Last 2 Years
%
No.
Current
%
No.
Next 2 Years
%
No.
"Flipping"
8%
2
4%
1
4%
1
4%
1
4%
1
0%
0
Agency: Disclosure of Confid. Info.
4%
1
4%
1
0%
0
Agency: Breach of Statutory Duties
4%
1
4%
1
4%
1
Disclosure: Mold and Water Intrusion
4%
1
4%
1
0%
0
4%
1
4%
1
0%
0
"As Is" Clauses
4%
1
4%
1
8%
2
Licensing Issues
4%
1
8%
2
12%
3
Breach of Contract
4%
1
0%
0
0%
0
RESPA
0%
0
4%
1
4%
1
0%
0
0%
0
8%
2
Other
19%
5
0%
0
19%
5
App 1-13
TABLE 11
MAJOR TOPICS WITH SIGNIFICANT
NUMBER OF CURRENT DISPUTES
% Indicating Significant
No.
of Current Disputes
Average
Value
Std.
Dev.
No.
Resp.
RESPA
35.09%
2.88
1.30
567
33.19%
2.93
1.21
1136
32.36%
2.83
1.22
372
Affinity Groups
31.06%
2.64
1.37
190
Ethics
29.29%
2.63
1.32
379
Agency
27.56%
2.54
1.34
2063
Technology
23.91%
2.60
1.30
569
22.46%
2.33
1.36
187
Antitrust
15.67%
2.15
1.19
753
Fair Housing
11.81%
2.10
1.10
1710
Employment
9.34%
1.92
1.03
1317
ADA
6.77%
1.70
0.96
354
Major Topic
App 1-14
TABLE 12
MAJOR TOPICS WITH MODERATE OR
HIGHER SIGNIFICANCE
% Indicating
Moderate/Higher
Significance
Average
Value
Std.
Dev.
No.
Resp.
63.03%
2.93
1.21
1136
RESPA
59.60%
2.88
1.30
567
57.80%
2.83
1.22
372
Affinity Groups
51.59%
2.64
1.37
190
Ethics
50.93%
2.63
1.32
379
Technology
48.87%
2.60
1.30
569
Agency
47.75%
2.54
1.34
2063
38.50%
2.33
1.36
187
Antitrust
34.79%
2.15
1.19
753
Fair Housing
34.33%
2.10
1.10
1710
Employment
25.13%
1.92
1.03
1317
ADA
17.51%
1.70
0.96
354
Major Topic
App 1-15
TABLE 13
RANKINGS OF CURRENT MAJOR TOPICS
% Ranking in Top 3
Today 3
Avg.
Rank
Std.
Dev.
No.
Resp.
Agency
50.28%
6.92
2.61
353
40.76%
6.19
2.95
184
Affinity Groups
33.33%
5.58
2.36
12
Ethics
23.88%
5.33
2.71
67
Antitrust
18.75%
4.97
2.39
64
RESPA
16.88%
4.62
2.53
77
Fair Housing
15.19%
4.82
2.21
79
Employment
12.77%
4.70
2.32
47
Technology
11.63%
3.88
2.39
43
11.11%
4.58
2.22
36
0.00%
4.00
2.00
7
ADA
0.00%
4.25
2.39
4
Major Topic
3
This figure represents the percentage of respondents who ranked the Major Topic
in their top three.
App 1-16
TABLE 14
MAJOR TOPICS LIKELY TO INCREASE IN IMPORTANCE
OVER NEXT TWO YEARS
% Indicating
Increase Over
Next 2 Years
Average
Value
Std.
Dev.
No.
Resp.
Technology
57.57%
3.66
0.78
502
54.43%
3.64
0.73
327
RESPA
54.34%
3.58
0.86
495
Affinity Groups
44.91%
3.47
0.75
167
44.76%
3.49
0.81
1004
Ethics
38.51%
3.40
0.62
335
Agency
35.36%
3.24
0.92
1831
25.75%
3.24
0.73
167
Antitrust
35.36%
3.21
0.70
1831
Employment
18.18%
3.08
0.65
1160
Fair Housing
17.14%
3.04
0.64
1505
ADA
9.40%
2.96
0.57
319
Major Topic
TABLE 15
RANKINGS OF POTENTIAL FUTURE TOPICS
% Ranking Top
3 Next 2 Years
Average
Rank
Std.
Dev.
No.
Resp.
Agency
53.36%
7.15
2.52
283
Antitrust
37.78%
6.16
2.64
45
33.55%
5.92
2.77
155
Major Topic
App 1-17
% Ranking Top
3 Next 2 Years
Average
Rank
Std.
Dev.
No.
Resp.
Ethics
29.17%
5.63
2.78
48
25.00%
5.13
2.57
8
RESPA
23.36%
5.25
2.59
55
Technology
21.57%
4.82
2.76
51
Employment
21.28%
5.15
2.60
47
Affinity Groups
20.00%
4.33
2.60
15
16.00%
4.24
2.23
25
Fair Housing
10.91%
4.84
1.89
55
ADA
0.00%
6.50
0.50
2
Major Topic
TABLE 16
SIGNIFICANT TRAINING NEEDS—MAJOR TOPICS
% Indicating
Significant
Training Need
Average
Value
Std.
Dev.
No.
Resp.
RESPA
60.89%
3.64
1.20
473
Technology
51.57%
3.44
1.21
475
Agency
47.29%
3.28
1.31
1732
Ethics
45.63%
3.32
1.18
320
44.00%
3.30
1.19
950
43.85%
3.29
1.20
317
Affinity Groups
42.68%
3.10
1.28
157
Antitrust
36.50%
3.07
1.25
633
Fair Housing
26.91%
2.84
1.18
1416
Major Topic
App 1-18
% Indicating
Significant
Training Need
Average
Value
Std.
Dev.
No.
Resp.
20.38%
2.49
1.22
157
Employment
19.29%
2.60
1.13
1104
ADA
12.54%
2.41
1.09
303
Major Topic
TABLE 17
ISSUES WITH SIGNIFICANT
NUMBER OF CURRENT DISPUTES
% Indicating
Significant
Disputes
Average
Value
Std.
Dev.
No.
Resp.
Commission Disputes/Procuring Cause
50.53%
3.51
1.09
190
50.53%
3.37
1.23
188
44.74%
3.33
1.10
190
Disclosure: Mold & Water Intrusion
44.74%
3.29
1.14
190
Arrangements
43.62%
3.14
1.13
188
Frivolous Lawsuits
[39.80%]
3.00
1.42
191
[37.69%]
3.04
1.19
191
Agency: Dual Agency
[37.18%]
2.92
1.36
191
RESPA: Kickbacks
[36.32%]
2.86
1.32
190
Ethics: Enforcement of NAR's Code of
Ethics by Courts
[35.79%]
2.87
1.34
190
[35.42%]
2.86
1.88
192
Issue
App 1-19
TABLE 18
MAJOR TOPICS WITH MODERATE OR HIGHER SIGNIFICANCE
% Indicating
Moderate/Higher
Significance
Average
Value
Std.
Dev.
No.
Resp.
66.14%
2.97
1.13
189
65.44%
3.04
1.19
191
"As Is" Clauses
63.10%
2.95
1.25
187
Disclosure: Roof
62.96%
2.90
1.06
189
59.79%
2.89
1.22
190
Ethics: Enforcement of NAR's Code
of Ethics by Courts
59.47%
2.87
1.34
190
RESPA: Kickbacks
58.43%
2.86
1.32
190
Agency: Dual Agency
58.12%
2.92
1.36
191
Licensing Issues
56.08%
2.83
1.32
189
55.73%
2.86
1.88
192
54.69%
2.70
1.25
192
Sign Ordinances
54.50 %
2.74
1.25
189
DTPA/Fraud
54.29%
2.75
1.27
190
"Flipping"
53.16%
2.63
1.20
190
Issue
App1-20
% Indicating
Moderate/Higher
Significance
Average
Value
Std.
Dev.
No.
Resp.
Costs
52.91%
2.63
1.23
189
Affinity Groups
51.59%
2.64
1.37
190
Breach of Contract
51.06%
2.70
1.28
188
Technology: Privacy
51.06%
2.62
1.37
190
[48.94%]
2.47
1.19
190
[48.42%]
2.57
1.27
190
Disclosure of Financial Ability to
Purchase or Rent
[47.40%]
2.49
1.17
190
Escrow Mishandling
[47.06%]
2.52
1.19
187
Technology: State Internet
Advertising Rules
[47.09%]
2.61
1.26
189
[46.59%]
2.36
1.14
191
Agreements
[45.15%]
2.60
1.41
189
Issue
TABLE 19
RANKINGS OF CURRENT ISSUES
% Ranking in
Top 3 Today
Average
Rank
Std.
Dev.
No.
Resp.
68.09%
8.09
2.07
47
61.45%
7.59
2.37
83
60.47%
7.44
2.20
43
Issue
App1-21
% Ranking in
Top 3 Today
Average
Rank
Std.
Dev.
No.
Resp.
Cause
57.14%
7.36
2.85
70
Agency: Dual Agency
56.36%
7.42
2.37
55
Agency: Subagency
54.55%
6.82
2.48
11
50.77%
6.98
2.15
65
50.00%
7.63
1.32
8
45.45%
6.48
2.87
44
42.86%
6.57
2.13
7
40.00%
5.40
2.80
5
Issue
Discrimination
Fair Housing: Handicap
Discrimination
TABLE 20
ISSUES LIKELY TO INCREASE IN IMPORTANCE
OVER NEXT TWO YEARS
% Indicating
Increase Over
Next 2 Years
Average
Value
Std.
Dev.
No.
Resp.
Cause
73.65%
3.95
0.69
167
66.67%
3.86
0.87
168
62.88%
3.75
0.76
167
Arrangements
62.19%
3.73
0.88
164
Technology: Privacy
60.48%
3.68
0.81
167
57.40%
3.64
0.82
169
56.63%
3.66
0.73
166
Issue
App1-22
% Indicating
Increase Over
Next 2 Years
Average
Value
Std.
Dev.
No.
Resp.
56.36%
3.62
0.81
165
"As-Is" Clauses
54.17%
3.36
0.80
168
RESPA: Kickbacks
53.02%
3.52
0.90
166
Frivolous Lawsuits
52.98%
3.63
0.80
168
52.17%
3.61
0.75
161
DTPA/Fraud
50.00%
3.56
0.68
168
49.41%
3.55
0.77
168
Uninsurable Homes/Failure to Close
48.81%
3.57
0.84
168
Licensing Issues
48.50%
3.55
0.75
167
48.22%
3.51
0.67
168
47.88%
3.49
0.79
165
47.02%
3.55
0.72
167
Agency: Minimum Service Agreements
46.66%
3.45
1.00
165
Affinity Groups
44.91%
3.47
0.75
167
Agency: Dual Agency
44.05%
3.38
1.03
168
43.71%
3.33
0.95
167
"Flipping"
41.67%
3.27
0.99
168
[39.64%]
3.32
0.88
169
Agency: Disclosure of Financial Ability
to Purchase or Rent
[39.52%]
3.32
0.78
167
[37.35%]
3.28
0.87
166
Issue
Ethics by Courts
Costs
App1-23
TABLE 21
RANKINGS OF POTENTIAL FUTURE ISSUES
Issue
% Ranking Top
3 Next 2 Years
Average
Rank
Std.
Dev.
No.
Resp.
72.55%
8.24
1.65
51
66.67%
7.33
2.79
9
Cause
63.49%
7.13
3.45
63
62.86%
7.77
2.52
35
Agreements
54.55%
6.88
3.01
33
Agency: Dual Agency
54.06%
7.22
2.58
49
52.63%
6.95
2.50
38
Agency: Transactional/
Nonagency
50.00%
6.70
2.19
10
Escrow Mishandling
46.15%
5.54
2.95
13
44.44%
6.78
2.35
9
43.75%
6.25
2.70
16
Breach of Contract
42.86%
5.36
2.92
14
Disclosure: Mold & Water
Intrusion
[39.47%]
6.45
2.66
38
[38.78%]
6.22
2.84
49
[36.36%]
6.00
2.89
11
[35.29%]
6.41
2.47
17
Agency: Disclosure of
Confidential Information
[35.00%]
6.00
2.65
20
App1-24
TABLE 22
SIGNIFICANT TRAINING NEEDS—INDIVIDUAL ISSUES
% Indicating
Significant
Need
Average
Value
Std.
Dev.
No.
Resp.
Arrangements
68.98%
3.80
1.19
158
66.67%
3.83
1.02
159
61.63%
3.74
1.08
159
RESPA: Kickbacks
60.76%
3.61
1.20
158
58.49%
3.58
1.24
159
56.96%
3.58
1.19
158
Agency: Dual Agency
56.60%
3.64
1.23
159
55.07%
3.52
1.09
158
54.72%
3.65
1.15
159
Ethics
53.13%
3.51
1.17
160
RESPA: Disclosure of Settlement Costs
52.87%
3.50
1.21
157
52.20%
3.45
1.26
159
Technology: Privacy
51.88%
3.48
1.19
160
Agency: Disclosure of Confidential Info.
50.63%
3.41
1.18
160
"As-Is" Clauses
50.32%
3.48
1.18
159
48.41%
3.34
1.33
154
47.44%
3.24
1.36
156
DTPA/Fraud
46.88%
3.41
.18
160
Issue
App1-25
% Indicating
Significant
Need
Average
Value
Std.
Dev.
No.
Resp.
46.26%
3.35
1.20
160
45.92%
3.27
1.27
159
45.86%
3.24
1.24
157
Licensing Issues
45.63%
3.28
1.22
160
44.66%
3.38
1.15
159
Affinity Groups
42.68%
3.10
1.28
157
42.40%
3.19
1.22
158
Agency: Disclosure of Financial Ability to
Purchase or Rent
42.14%
3.21
1.16
159
41.51%
3.30
1.18
159
41.40%
3.24
1.20
157
Breach of Contract
[38.75%]
3.14
1.24
160
Uninsured Homes/Failure to Close
[37.10%]
3.10
1.23
159
[36.70%]
3.04
1.26
158
[36.07%]
3.09
1.22
158
[34.59%]
2.93
1.33
159
Issue
App1-26
TABLE 23
MODERATE OR HIGHER TRAINING NEEDS
Issue
%
Indicating
Moderate/
Higher
Need
Average
Value
Std.
Dev.
No.
Resp.
Ethics: Reliance on NAR's Code of Ethics
by Courts
74.38%
3.13
1.17
160
Marketing
71.15%
3.02
1.14
156
Disclosure: Roof
70.25%
3.02
1.14
158
Uninsurable Homes/Failure to Close
69.80%
3.10
1.23
159
68.98%
3.04
1.26
158
Breach of Contract
68.75%
3.14
1.24
160
68.35%
3.098
1.22
158
"Flipping"
67.93%
3.01
1.17
159
Fair Housing: National Origin Discrim.
67.72%
2.96
1.19
158
Fair Housing: Familial Status Discrim.
67.09%
2.93
1.18
158
Antitrust: Tying Arrangements
66.88%
2.98
1.23
157
Escrow Mishandling
66.66%
2.87
1.13
159
65.61%
2.89
1.17
157
Discrimination
64.74%
2.87
1.19
156
Employment: Personal Assistants
64.56%
2.92
1.19
158
64.56%
2.86
1.21
158
Agency: Transactional/Nonagency
63.81%
2.87
1.29
152
App1-27
%
Indicating
Moderate/
Higher
Need
Average
Value
Std.
Dev.
No.
Resp.
Discrimination
62.03%
2.77
1.17
158
61.01%
2.93
1.33
159
Frivolous Lawsuits
61.00%
2.86
1.29
159
Employment: Employment Discrimination
60.13%
2.77
1.187
158
59.49%
2.69
1.21
158
Employment: Independent Contractors
58.87%
2.73
1.10
158
57.96%
2.60
1.09
157
Sign Ordinances
56.68%
2.79
1.20
159
53.80%
2.57
1.13
158
53.17%
2.48
1.10
158
50.31%
2.47
1.02
149
ADA: Accessibility
[48.70%]
2.47
1.12
154
[47.77%]
2.39
1.13
157
[47.13%]
2.49
1.22
157
ADA: Employment
[46.31%]
2.45
1.05
149
Issue
App1-28
Appendix 2: Cases by Problem Area
Agency: Dual Agency
Baker v. Sunbelt Business Brokers, No. A07-0514, 2008 WL 668608 (Minn. Ct. App. Mar. 11, 2008)
Clancy Realtors v. Rubick, Nos. 276309, 276310, 2008 WL 4958793 (Mich. Ct. App. Nov. 20, 2008)
Fici v. Koon, 642 S.E.2d 602 (S.C. 2007)
Foster v. Wintergreen Real Estate Co., No. 3:08cv00031, 2008 WL 4829674 (W.D. Va. Nov. 6, 2008)
Hart v. Giannini, No. A118822, 2008 WL 2536971 (Cal. Ct. App. June 25, 2008)
Hawkins v. Pridgen, No. BC326075, 2007 WL 2068585 (Cal. Super. Ct. L.A. County Feb. 26, 2007)
Jenkins v. Strauss, 931 A.2d 1026 (D.C. 2007)
Lim v. Llamas, No. CIV459547, 2008 WL 5501260 (Cal. Super. Ct. San Mateo County Mar. 28, 2008)
Maali v. Abtahi, No. H030086, 2008 WL 163007 (Cal. Ct. App. Jan. 16, 2008)
Martinez v. AFM Realtors of Am., No. 2002071380, 2007 WL 4976568 (Cal. Super. Ct. Alameda County Mar. 2, 2007)
May v. Holdaway, No. 06-CV-2996, 2007 WL 4766432 (Kan. Dist. Ct. Sedgwick County Oct. 2, 2007)
Mayfield v. Reed, 981 So. 2d 235 (La. Ct. App. 2008)
Mobilio v. Schwartz, 2007 WL 1661255 (N.J. Super. Ct. App. Div. June 11, 2007)
Nishikawa v. U.S. Eagle High, LLC, 158 P.3d 1265 (Wash. Ct. App. 2007)
Paas v. Labasan, No. LC076087, 2008 WL 2571375 (Cal. Super. Ct. L.A. County Apr. 1, 2008)
Rogers v. Progressive Urban Real Estate, Inc., No CV-06-594363, 2007 WL 4532167 (Ohio Com. Pl. Cuyahoga County
Oct. 15, 2007)
Rorig v. Thiemann, No. 1:05CV801, 2007 WL 2071909 (S.D. Ohio July 17, 2007)
Rose v. Katsaras, No. B194202, 2007 WL 3151335 (Cal. Ct. App. Oct. 30, 2007)
Sampson v. Kagel, No. 105CV053398, 2007 WL 715347 (Cal. Super. Ct. Santa Clara County Feb. 2, 2007)
Sher v. Cella, 160 P.3d 1250 (Hawai’i Ct. App. 2007)
Waddles v. La Cour, 950 So. 2d 937 (La. Ct. App. 2007)
Wurtzel v. Marcus & Millichap Real Estate Inv. Brokerage Co., No. B191607, 2007 WL 2430012 (Cal. Ct. App. Aug. 29,
2007)
Ajruli v. Possemato, No. CV-04-4002910-S, 2007 WL 2609569 (Conn. Super. Ct. Waterbury Apr. 4, 2007)
Athanasiou v. McWhinnie, No. CV2006-00797, 2008 WL 2763096 (Mass. Super. Ct. Bristol County May 28, 2008)
Davis v. Silvers, 670 S.E.2d 805 (Ga. Ct. App. 2008)
Dutschke v. Jim Russell Realtors, Inc., No. 2007-CA-001146-MR, 2008 WL 2942093 (Ky. Ct. App. Aug. 1, 2008)
Evans v. Singer, 518 F. Supp. 2d 1134 (D. Ariz. 2007)
Gad v. Blankenship, No. CL-2007-10827, 2008 WL 5684852 (Va. Cir. Ct. Faifax County May 7, 2008)
Grammer v. Asbury, No. F050176, 2007 WL 3105442 (Cal. Ct. App. Oct. 25, 2007)
Harrouk v. Fierman, 662 S.E.2d 892 (Ga. Ct. App. 2008)
Kemp v. Osbourn, No. 2006-CV-02094, 2007 WL 5269441 (Ohio Com. Pl. Stark County Dec. 14, 2007)
Killough v. Shiels, 845 N.Y.S.2d 575 (App. Div. 2007)
Lloyd-Butler v. Mary Worrall Assocs., Inc., 222 Fed. Appx. 613 (9th Cir. 2007)
Maier v. Manyak, No. 05-1949, 2008 WL 5691205 (Ky. Cir. Ct. Warren County Aug. 1, 2008)
Copyright 2009 National Associations of REALTORS®
App 2-1
Maravilla v. Seclar, No. 10-C-06-001614, 2007 WL 4991039 (Md. Cir. Ct. Frederick County May 31, 2007)
Michel v. Palos Verdes Network Group, Inc., 67 Cal. Rptr. 3d 797 (Ct. App. 2007)
Norman v. Nivica, No. CV-2005-008882, 2007 WL 4862200 (Ariz. Super. Ct. Maricopa County July 27, 2007)
Orellana v. Chiera, No. CV0760004889S, 2008 WL 4779738 (Conn. Super. Ct. Oct. 10, 2008)
Pettit v. Hughes, 894 N.E.2d 738, 2008-Ohio-3780 (Ohio Ct. App. 2008)
Quiogue v. Hemerick, No. GIC826778, 2007 WL 4885822 (Cal. Super. Ct. S.D. County Jan. 9, 2007)
Ramsey v. Toelle, No. 3404-S, 2008 WL 4570580 (Del. Ch. Sept. 30, 2008)
Richards v. ABN AMRO Mtge. Group, Inc., 261 S.W.3d 603 (Mo. Ct. App. 2008)
Richards v. Loftman, No. 06-CA-970 CA, 2007 WL 3144687 (Fla. Cir. Ct. Clay County Sept. 10, 2007)
Rivkin v. Century 21 Teran Realty LLC, 10 N.Y.3d 344, 858 N.Y.S.2d 55 (2008) (Rivkin II)
Rivkin v. Century 21 Teran Realty LLC, 494 F.3d 99 (2d Cir. 2007) (Rivkin I)
Rivkin v. Century 21 Teran Realty LLC, 535 F.3d 105 (2d Cir. 2008) (Rivkin III)
Shirk v. Garrow, 505 F. Supp. 2d 169 (D.D.C. 2007)
Terra Firma Co. v. Morgan, No 33908, 2008 WL 5192228 (W. Va. Dec. 12, 2008)
Thompson v. Chandler, No. 2004 CVS000019, 2007 WL 5030973 (N.C. Super. Ct. Camden County Apr. 25, 2007)
Ulloa v. McMillin Real Estate & Mtge., Inc., 57 Cal. Rptr. 3d 1 (Ct. App. 2007)
Uzzle v. Nunzie Court Homeowners' Ass'n, Inc., 866 N.Y.S.2d 237 (App. Div. 2008)
Warfield v. Stewart, No. 2:07-cv-332-T-27DNF, 2007 WL 2915912 (M.D. Fla. Oct. 5, 2007)
Weintraub Fin. Servs. Inc. v. Mirkin, No. BC364025, 2008 WL 4683448 (Cal. Super. Ct. L.A. County Mar. 26, 2008)
Agency: Transactional/Non-Agency
Asuamah v. Haley, 666 S.E.2d 426 (Ga. Ct. App. 2008), cert. granted (Ga. Feb. 10, 2009)
Agency: Disclosure of Confidential Information After Termination of Agency
Relationship
Tuccio Dev., Inc. v. Neumann, 960 A.2d 1071 (Conn. App. Ct. 2008)
Burke v. Sea Point Realtors, 947 A.2d 686 (N.J. Super. Ct. App. Div. 2008)
Ehresmann v. Muth, 757 N.W.2d 402 (S.D. 2008)
Bankers Realty, Inc. v. Shiotsugu, No. B190143, 2008 WL 73691 (Cal. Ct. App. Jan. 8, 2008)
Camerone v. Phillips, No. CV03-0483400-S, 2007 WL 1953137 (Conn. Super. Ct. New Haven Jan. 17, 2007)
Carmody v. Sultzbaugh, No. 401-02325-02, 2007 WL 2316039 (Tex. Dist. Ct. Collin County July 16, 2007)
Cavagnaro v. Coldwell Banker Alfonso Realty, Inc., 995 So. 2d 754 (Miss. Ct. App. 2008)
Delehunt Props. LLC v. Santana, 2008 WL 4866647 (Cal. Super. Ct. Sept. 14, 2008)
Elgersma v. Re/Max of Grand Rapids, No. 05-10539-CK, 2008 WL 4455629 (Mich. Cir. Ct. Kent County June 2, 2008)
Enman v. Carney, No. 2006-CA-345, 2008 WL 5119685 (Fla. Cir. Ct. Lake County July 22, 2008)
App 2-2
Epps v. Powell, No. CAL07-22348, 2008 WL 4376838 (Md. Cir. Ct. Prince George's County Feb. 8, 2008)
Grimes v. Hall, No. CV-2003-019397, 2007 WL 4277605 (Ariz. Super. Ct. Maricopa County Mar. 1, 2007)
Harrouk v. Fierman, 662 S.E.2d 892 (Ga. Ct. App. 2008)
Hinton Hardwoods, Inc. v. Cumberland Scrap Proc. Transp., No. 2008-CA-00362-MR, 2008 WL 5429569 (Ky. Ct. App.
Dec. 31, 2008)
Igo v. Re/Max Int'l Inc., 83 Pa. D & C 4th 16, 2007 WL 2985289 (Com. Pl. Beaver County July 2, 2007)
Jenkins v. Strauss, 931 A.2d 1026 (D.C. 2007)
Joung v. Shin, No. 029613, 2007 WL 512756 (Cal. Ct. App. Feb. 20, 2007)
Kam Ctr. Specialty Corp. v. LWC IV Corp., 116 Hawai'i 28, 2007 WL 2827589 (Hawai'i Sept. 27, 2007)
Kennedy v. Hoffman, No. 2006-6SC014742, 2007 WL 4234742 (Fla. Cir. Ct. Palm Beach County July 18, 2007)
Lee v. Tom Yau Revocable Trust, No. 06-2-10829-4, 2008 WL 2901829 (Wash. Super. Ct. Pierce County Feb. 14, 2008)
Lim v. Llamas, No. CIV459547, 2008 WL 5501260 (Cal. Super. Ct. San Mateo County Mar. 28, 2008)
Miller v. Coldwell Baker Hunter Realty, No. CV-06-589925, 2008 WL 52335452 (Ohio Com. Pl. Cuyahoga County Oct. 7,
2008)
Namoury v. Tibbetts, No. 3:04-cv-599 (WWE), 2008 WL 4696066 (D. Conn. Oct. 23, 2008)
Nichols v. Munnick, 885 N.E.2d 1 (Ind. 2008)
Nishikawa v. U.S. Eagle High, LLC, 158 P.3d 1265 (Wash. Ct. App. 2007)
Palter v. Blackhawk, No. CGC07465159, 2008 WL 5575053 (Cal. Super. Ct. S.F. County Nov. 14, 2008)
Paradies v. Bleich, No. C-2004-6268, 2007 WL 1599895 (Ariz. Super. Ct. Pima County Mar. 7, 2007)
Paras v. Enamorado, No. A503897, 2008 WL 2115383 (Nev. Dist. Ct. Clark County Feb. 22, 2008)
Preview Props., Inc. v. Landis, 165 P.3d 1 (Wash. 2007)
Quiogue v. Hemerick, No. GIC826778, 2007 WL 4885822 (Cal. Super. Ct. S.D. County Jan. 9, 2007)
Realmuto v. Ross Provence & Assocs., No. D047856, 2007 WL 1748076 (Cal. Ct. App. June 19, 2007)
Richards v. Loftman, No. 06-CA-970 CA, 2007 WL 3144687 (Fla. Cir. Ct. Clay County Sept. 10, 2007)
Rivkin v. Century 21 Teran Realty LLC, 10 N.Y.3d 344, 858 N.Y.S.2d 55 (2008) (Rivkin II)
Rivkin v. Century 21 Teran Realty LLC, 494 F.3d 99 (2d Cir. 2007) (Rivkin I)
Rivkin v. Century 21 Teran Realty LLC, 535 F.3d 105 (2d Cir. 2008) (Rivkin III)
S.N.R. Mgmt. Corp. v. Danube Partners 141, LLC, 659 S.E.2d 442 (N.C. Ct. App. 2008)
Sahni v. Emerald Mtge. Corp., No. B204071, 2008 WL 5394937 (Cal. Ct. App. Nov. 19, 2008)
Schlimmer v. Coldwell Banker Pacesetter Steel Realtors, No. 06-5384-G, 2007 WL 4247016 (Tex. Dist. Ct. Nueces
County Nov. 1, 2007)
Schutter v. Herskowitz, No. 2:07-CV-03823-DS, 2008 WL 5688684 (E.D. Pa. Dec. 10, 2008)
Sheldon v. Khanal, No. 07-2112-KHV, 2007 WL 4233628 (D. Kan. Nov. 29, 2007)
Sutton v. Ebby Halliday Real Estate Inc., No. 70049-86, 2007 WL 4885412 (Tex. Dist. Ct. Kaufman County Sept. 6, 2007)
Ulloa v. McMillin Real Estate & Mtge., Inc., 57 Cal. Rptr. 3d 1 (Ct. App. 2007)
App 2-3
United Capital Invs., Inc. v. Axton, No. C056621, 2008 WL 4539676 (Cal. Ct. App. Oct. 10, 2008)
Walsh v. Grell, No. YC053192, 2007 WL 55949165 (Cal. Super. Ct. L.A. County Nov. 5, 2007)
Agency: Disclosure of Financial Ability (to purchase or rent)
Dallas Bayou Bend Ltd. v. Defterios, No. 06-12902-A, 2008 WL 5521344 (Tex. Dist. Ct. Dallas County Oct. 24, 2008)
Sheldon v. Khanal, No. 07-2112-KHV, 2007 WL 4233628 (D. Kan. Nov. 29, 2007)
Clancy Realtors v. Rubick, Nos. 276309, 276310, 2008 WL 4958793 (Mich. Ct. App. Nov. 20, 2008)
Agency: Other
Churchill v. J.P. King Auction Co., No. 274461, 2008 WL 996441 (Mich. Ct. App. Apr. 10, 2008)
Elias Real Estate, LLC v. Tseng, 67 Cal. Rptr. 3d 360 (Ct. App. 2007), review denied (Cal. Feb. 13, 2008)
Kopley Group V., L.P. v. Sheridan Edgewater Props., Ltd., 876 N.E.2d 218 (Ill. App. Ct. 2007)
Sedlocke v. Moyle, 668 S.E.2d 176 (W. Va. 2008)
Property Condition Disclosure: Structural Defects
Bavuso v. Springfield Better Homes Inc., No. CV 105 5702 CC, 2008 WL 5723892 (Mo. Cir. Ct. Clay County Oct. 29,
2008)
Duncan v. Normand, No. 16-2006-CA 0079, 2007 WL 3172021 (Fla. Cir. Ct. Duval County Sept. 18, 2007)
Fox v. Heimann, 872 N.E.2d 126 (Ill. App. Ct. 2007)
Friedler v. Palyompis, 845 N.Y.S.2d 347 (App. Div. 2007)
Goodale v. Langenberg, 243 S.W.3d 575 (Tenn. Ct. App. 2007)
Hollingsworth v. Choates, 963 So. 2d 1089 (La. Ct. App. 2007)
M&B Villas at Oak Hills LLC v. Oak Hills Manor LP, No. 2004-CI-03425, 2008 WL 3853289 (Tex. Dist. Ct. Bexar County
May 30, 2008)
Matzke v. Alderman, No. 07-2-00845-1, 2008 WL 547913 (Wash. Super. Ct. Benton County July 9, 2008)
Mayfield v. Reed, 981 So. 2d 235 (La. Ct. App. 2008)
Mock v. Taylor, No. 05 CV 1940, 2007 WL 4801196 (Colo. Dist. Ct. Douglas County June 15, 2007)
Nelson v. Pickford Real Estate, Inc., No. G036366, 2007 WL 1723698 (Cal. Ct. App. June 15, 2007)
Osterhaus v. Toth, 187 P.3d 126 (Kan. Ct. App. 2008)
Phan v. Addison Spectrum, L.P., 244 S.W.3d 892 (Tex. App.–Dallas 2008)
Silter v. Warner, 961 So. 2d 1258 (La. Ct. App. 2007)
Simone v. Homecheck Real Estate Servs., Inc., 840 N.Y.S.2d 398 (App. Div. 2007)
Simonsen v. Bach, No. CV-2005-092043, 2007 WL 3202507 (Ariz. Super. Ct. Maricopa County May 14, 2007)
Slocum v. Ken Major Realty, No. 2007 CA 0803, 2007 WL 4465656 (La. Ct. App. Dec. 21, 2007)
App 2-4
Property Condition Disclosure: Sewer/Septic
Baker v. Gilhooly, No. CV065003939, 2008 WL 3853436 (Conn. Super. Ct. July 24, 2008)
Bergeron v. Don Baker Real Estate, No. CV2005-01935, 2008 WL 2404408 (Mass. Super. Ct. Essex County Feb. 1,
2008)
Crawford v. Mintz, 653 S.E.2d 222 (N.C. Ct. App. 2007), rev'd, 669 S.E.2d 738 (N.C. 2008)
Crawford v. Mintz, 669 S.E.2d 738 (N.C. 2008), rev'g 653 S.E.2d 222 (N.C. Ct. App. 2007)
Davis v. Silvers, 670 S.E.2d 805 (Ga. Ct. App. 2008)
Farmer v. Ricigliano, No. A454221, 2007 WL 4885383 (Nev. Dist. Ct. Clark County Sept. 25, 2007)
Fee v. Stahley, No. A07-2211, 2008 WL 4849844 (Minn. Ct. App. Nov. 10, 2008)
May v. Holdaway, No. 06-CV-2996, 2007 WL 4766432 (Kan. Dist. Ct. Sedgwick County Oct. 2, 2007)
Monick v. Matta, No. 2005-5590, 2008 WL 4847574 (Pa. Com. Pl. Westmoreland County May 20, 2008)
Pettit v. Hughes, 894 N.E.2d 738, 2008-Ohio-3780 (Ohio Ct. App. 2008)
Pettit v. Hughes, No. CH2005065, 2007 WL 4962061 (Ohio Com. Pl. Muskingum County July 16, 2007)
Schwartz v. Rockey, 932 A.2d 885 (Pa. 2007)
Wagoner v. Obert, No. 07 CA 31, 2008 WL 5491273, 2008-Ohio-7041 (Ohio Ct. App. Dec. 31, 2008)
Young v. Vista Homes, Inc., 243 S.W.3d 352 (Ky. Ct. App. 2007)
Property Condition Disclosure: Lead-based Paint
Pellegrini v. Century 21, No. 05-30077-MAP, 2007 WL 2219331 (D. Mass. July 20, 2007)
Property Condition Disclosure: Mold
Elliot v. Therrin, No. 2005-069174-CK, 2008 WL 5682567 (Mich. Cir. Ct. Oakland County June 6, 2008)
Fain v. John Daugherty Realtors Inc., No. 2005-74126, 2007 Wl 4208423 (Tex. Dist. Ct. Harris County Sept. 12, 2007)
Gad v. Granberry, 958 So. 2d 125 (La. Ct. App. 2007)
Leis v. A. Lewis Purdy Real Estate, No. L-000432-04, 2007 WL 2492443 (N.J. Super. Ct. Law Div. May 10, 2007)
May 30, 2008)
Poyner v. RE-MAX Experience, No. RIC438019, 2007 WL 5248726 (Cal. Super. Ct. Riverside County June 18, 2007)
Sclater v. Santeramo, No. 05 CV 4264, 2008 WL 4240028 (Colo. Dist. Ct. Apr. 16, 2008)
Watts v. Kelley, No. CISCV153087, 2007 WL 2316079 (Cal. Super. Ct. Santa Cruz County May 30, 2007)
Winters v. Prudential Carolina Real Estate Co., No. 2007 CP 08 0973, 2008 WL 5473192 (S.C. Com. Pl. Berkely County
Aug. 19, 2008)
App 2-5
Property Condition Disclosure: Roof
Stieneke v. Russi, 190 P.3d 60 (Wash. Ct. App. 2008)
Vanek v. Seeber, No. 2005-13840, 2008 WL 5083202 (La. Dist. Ct. St. Tammany Parish Aug. 4, 2008)
Property Condition Disclosure: Flooring/Walls
Deptula v. Simpson, 164 P.3d 640 (Alaska 2007)
Ehresmann v. Muth, 757 N.W.2d 402 (S.D. 2008)
Gad v. Granberry, 958 So. 2d 125 (La. Ct. App. 2007)
Property Condition Disclosure: Plumbing
Chermak v. Wu, No. 62-C6-06-007631, 2007 WL 1760570 (Minn. Dist. Ct. Ramsey County Jan. 10, 2007)
Giddeon v. Weekley Homes, L.P., No. 2003-CI-14883, 2007 WL 5122969 (Tex. Dist. Ct. Bexar County Dec. 20, 2007)
May 30, 2008)
Property Condition Disclosure: HVAC
Property Condition Disclosure: Valuation
Cowan v. Bontiago, No. 060103704, 2008 WL 4073308 (Pa. Com. Pl. July 2, 2008)
Kim v. Lee, No. BC362436, 2008 WL 2366500 (Cal. Super. Ct. L.A. County Apr. 29, 2008)
Laignel v. DeGrande, No. 07CV2654, 2008 WL 5100871 (Colo. Dist. Ct. Jefferson County Apr. 23, 2008)
May 30, 2008)
Orland v. Kukielka, 836 N.Y.S.2d 252 (App. Div. 2007)
Pleasant v. Bradford, 260 S.W.3d 546 (Tex. App.–Austin 2008)
App 2-6
Torres v. Fortune Dev. Sales Corp., No. 06-00380 CA-11, 2008 WL 3833694 (Fla. Cir. Ct. Miami-Dade County Mar. 20,
2008)
Tres Chic in a Week, L.L.C. v. Home Realty Store, 993 So. 2d 228 (La. Ct. App. 2008)
Turey v. Vayda, No. CV030408100S, 2007 WL 1748151 (Conn. Super. Ct. June 1, 2007)
Williams v. Windermere Real Estate/East, Inc., No. 57756-5-I, 2007 WL 1180649 (Wash. Ct. App. Apr. 23, 2007)
Property Condition Disclosure: Insects/Vermin
Garcia v. Magnum, No. 06-12001-J, 2008 WL 5521346 (Tex. Dist. Ct. Dallas County Oct. 20, 2008)
Hendren v. Hall, No. 0616CV03558, 2007 WL 1705042 (Mo. Cir. Ct. Jackson County Apr. 5, 2007)
Pessler v. Metcalf, No. G036418, 2007 WL 1696996 (Cal. Ct. App. June 13, 2007)
Robinson v. Brown, No. 05-CV-0492, 2007 WL 2403547 (Kan. Dist. Ct. Reno County June 8, 2007)
Thomas v. American Dream Realty Servs. LLC, No. 269235V, 2007 WL 5030912 (Md. Cir. Ct. Oct. 12, 2007)
Property Condition Disclosure: Boundaries
Busby v. Lewis, 993 So. 2d 31 (Ala. Civ. App. 2008)
Courey v. Porter, No. 03-713-CA, 2007 WL 1976957 (Fla. Cir. Ct. Santa Rosa County Mar. 30, 2007)
Davis v. Montenery, 2007 WL 4145989, 2007-Ohio-6221 (Ct. App. Nov. 15, 2007)
Fee v. Stahley, No. A07-2211, 2008 WL 4849844 (Minn. Ct. App. Nov. 10, 2008)
Hai Duong v. Lai, No. 04-2-35609-1KNT, 2007 WL 2749217 (Wash. Super. Ct. King County July 3, 2007)
Paradies v. Bleich, No. C-2004-6268, 2007 WL 1599895 (Ariz. Super. Ct. Pima County Mar. 7, 2007)
Robinson v. Kilgore, No. 06-2-09080-8, 2007 WL 5447062 (Wash. Super. Ct. Pierce County Oct. 18, 2007)
Rodriguez v. Parker, No. 276937V, 2008 WL 4925087 (Md. Cir. Ct. Feb 21, 2008)
Thompson v. Chandler, No. 2004 CVS000019, 2007 WL 5030973 (N.C. Super. Ct. Camden County Apr. 25, 2007)
Thompson v. Johnson, No. C052873, 2007 WL 1314525 (Cal. Ct. App. May 7, 2007)
VanSlyke v. Gibson, 53 Cal. Rptr. 3d 491 (Ct. App. 2007)
Wagoner v. Obert, No. 07 CA 31, 2008 WL 5491273, 2008-Ohio-7041 (Ohio Ct. App. Dec. 31, 2008)
White v. Gallagher, No. 269647, 2007 WL 624561 (Mich. Ct. App. Mar. 1, 2007)
Property Condition Disclosure: Zoning
ERA Class.com, Inc. v. Stoddard, 987 So. 2d 1130 (Ala. Civ. App. 2007), cert. denied (Ala. Dec. 21, 2007)
Jones v. Mystic Harbour Corp., No. AMD 08-1047, 2008 WL 5283031 (D. Md. Dec. 17, 2008)
Manderville v. PCG & S Group, 55 Cal. Rptr. 3d 59 (Ct. App. 2007)
Nguyen v. Tran, 68 Cal. Rptr. 3d 906 (Cal. Ct. App. 2007)
Quinlan v. Clasby, 879 N.E.2d 703 (Mass. App. Ct. 2008)
Turey v. Vayda, No. CV030408100S, 2007 WL 1748151 (Conn. Super. Ct. June 1, 2007)
Property Condition Disclosure: Off-site Adverse Conditions
Gauld v. O'Shaugnessy Realty Co., 671 S.E.2d 79 (S.C. Ct. App. 2008)
App 2-7
McConner v. Long, No. A536549, 2008 WL 5158878 (Nev. Dist. Ct. Clark County July 23, 2008)
Misra v. Yedid, 831 N.Y.S.2d 40 (App. Div. 2007)
Smith v. Ware, No. 05CC09042, 2007 WL 1264160 (Cal. Super. Ct. Orange County Mar. 7, 2007)
Zokaites v. Balistreri Realty, Inc., No. 0:06-CV-61244-JIC, 2007 WL 2197754 (S.D. Fla. June 28, 2007)
Property Condition Disclosure: Meth Labs
Bloor v. Fritz, 180 P.3d 805 (Wash. Ct. App. 2008)
Moore v. Williams, 192 P.3d 1275 (Okla. Civ. App. 2008)
Property Condition Disclosure: Stigmatized Property
Deptula v. Simpson, 164 P.3d 640 (Alaska 2007)
Property Condition Disclosure: Pollution/Environmental Other
Dubois v. Lindsley (In re Lindsley), 388 B.R. 661 (Bankr. D. Md. 2008)
Enman v. Carney, No. 2006-CA-345, 2008 WL 5119685 (Fla. Cir. Ct. Lake County July 22, 2008)
Hart v. Giannini, No. A118822, 2008 WL 2536971 (Cal. Ct. App. June 25, 2008)
Johnson v. Brenshall Homes, Inc., No. 27-CV-06-1391, 2007 WL 476644 (Minn. Dist. Ct. Hennepin County Oct. 25, 2007)
Slocum v. Ken Major Realty, No. 2007 CA 0803, 2007 WL 4465656 (La. Ct. App. Dec. 21, 2007)
Property Condition Disclosure: Other
Brown v. IM Realty, No. MER-L-1211-06, 2008 WL 2663089 (N.J. Super. Ct. Law Div. Mar. 26, 2008)
DiFrancesco v. County of Rockland, 839 N.Y.S.2d 105 (App. Div. 2007)
Edison v. Petraglia, No. CV2004-01709, 2007 WL 4340547 (Mass. Super. Ct. Worcester County Mar. 16, 2007)
Garcia v. Santa Maria Resort, Inc., 528 F. Supp. 2d 1283 (S.D. Fla. 2007)
Harris v. Smith, 250 S.W.3d 804 (Mo. Ct. App. 2008)
Joseph v. NRT Inc., 18 Misc. 3d 296, 2007 WL 3407745 (N.Y.C. Civ. Ct. Nov. 9, 2007)
Schnellmann v. Roettger, 645 S.E.2d 239 (S.C. 2007)
Stussy v. Gabbert & Gabbert Co., No. A07-1875, 2008 WL 4133856 (Minn. Ct. App. Sept. 9, 2008)
Waddles v. La Cour, 950 So. 2d 937 (La. Ct. App. 2007)
Walters v. Loloff, 176 P.3d 1034 (Mont. 2008)
Whittle v. Blanchard, No. 05-17068, 2007 WL 4911607 (Fla. Cir. Ct. Dec. 21, 2007)
Wurtzel v. Marcus & Millichap Real Estate Inv. Brokerage Co., No. B191607, 2007 WL 2430012 (Cal. Ct. App. Aug. 29,
2007)
Martin v. Maselle & Assocs., Inc., No. 3:06-CV-55-WHB-LRA, 2007 WL 1975118 (S.D. Miss. July 2, 2007)
Nasser v. AT&T Corp., No. C 05-5426, 2007 WL 1119203 (N.D. Cal. Apr. 16, 2007)
App 2-8
Teare v. Re/Max of Ga., Inc., No. 1:05-CV-1236-RWS, 2008 WL 4452356 (N.D. Ga. Sept. 30, 2008)
Spacek v. Realty One, Inc., No. CV-06-607379, 2008 WL 3089257 (Ohio Com. Pl. Cuyahoga County June 2, 2008)
Employment: Sex Discrimination
Demers v. Adams Homes of N.W. Fla., Inc., No. 6:06-CV-1235-Orl-31KRS, 2007 WL 3333440 (M.D. Fla. Nov. 7, 2007)
Martin v. Maselle & Assocs., Inc., No. 3:06-CV-55-WHB-LRA, 2007 WL 1975118 (S.D. Miss. July 2, 2007)
Nasser v. AT&T Corp., No. C 05-5426, 2007 WL 1119203 (N.D. Cal. Apr. 16, 2007)
Zoccoli v. DBSI, Inc., No. CV-08-1339-PHX-GMS, 2008 WL 5381579 (D. Ariz. Dec. 23, 2008)
Employment: Race Discrimination
Webb v. Carpenter Realtors, No. 1:05-723, 2007 WL 2216444 (S.D. Ind. Apr. 24, 2007)
Cullop v. Land Resource Co., No. 2:06-CV-207, 2007 WL 445823 (E.D. Tenn. Feb. 6, 2007)
Heaney v. Prudential Real Estate Affiliates, Inc., No. 05-820, 2008 WL 2704542 (E.D. La. Jul. 3, 2008)
Downing v. Burns, No. 07-DCV-154732, 2008 WL 5525368 (Tex. Dist. Ct. Ft. Bend County Nov. 20, 2008)
Employment: Independent Contractors
Ackley v. Caputo-Belcher, No. 05CV6211, 2007 WL 1800555 (Kan. Dist. Ct. Johnson County Mar. 2, 2007)
Cannon v. Douglas Elliman, LLC, No. 06 Civ. 7092 (NRB), 2007 WL 4358456 (S.D.N.Y. Dec. 10, 2007)
Hesse v. Ebbets, No. 1:07cv603(LMB), 2007 WL 4562818 (E.D. Va. Dec. 20, 2007)
Hesse v. Long & Foster Real Estate, Inc., No. 1:07-CV-00603-LMB-TCB, 2007 WL 5173597 (E.D. Va. Dec. 20, 2007)
Oliveira-Brooks v. Re/Max Int’l, Inc., 865 N.E.2d 252 (Ill. App. Ct. 2007)
Perdomo v. Ask 4 Realty & Mgmt., Inc., 298 Fed. Appx. 820 (11th Cir. 2008)
Petersen v. Cent. Park Props., Inc., 745 N.W.2d 884 (Neb. 2008)
Winter Park Real Estate & Inv., Inc. v. Anderson, 160 P.3d 399 (Colo. Ct. App. 2007)
Employment: Workers’ Compensation
Maggart v. Almany Realtors, Inc., 259 S.W.3d 700 (Tenn. 2008)
Employment: Other
Baird v. Warner Residential Sales, Inc. v. Mazzone, 893 N.E.2d 1010 (Ill. App. Ct. 2008)
De La Riva v. Weatherspoon, No. 30-2008-00101134, 2008 WL 5545357 (Cal. Super. Ct. Orange County Dec. 11, 2008)
In re Alexander, 846 N.Y.S.2d 449 (App. Div. 2007)
Maali v. Abtahi, No. H030086, 2008 WL 163007 (Cal. Ct. App. Jan. 16, 2008)
App 2-9
Maddock v. KB Homes, Inc., 248 F.R.D. 229 (C.D. Cal. 2007)
Perdomo v. Ask 4 Realty & Mgmt., Inc., 298 Fed. Appx. 820 (11th Cir. 2008)
Ruddy v. REINV, No. CV-04-0412303-S, 2008 WL 5688343 (Conn. Super. Ct. Fairfield Sept. 24, 2008)
Scachitti v. DMC Real Estate Dev., Inc., No 6:07-CV-1003-Orl-19DAB, 2008 WL 4853617 (M.D. Fla. Nov. 10, 2008)
Sold Inc. v. Alvarez, No. 06 M5 183, 2008 WL 5235487 (Ill. Cir. Ct. Cook County Apr. 10, 2008)
Ewers v. Columbia Hts. Realty, LLC, 844 N.Y.S.2d 45 (App. Div. 2007)
Sisemore v. Master Fin'l, Inc., 60 Cal. Rptr. 3d 719 (Ct. App. 2007)
Bafford v. Township Apts. Assocs., No. 8:06-CV-657-T-27TGW, 2007 WL 4247763 (M.D. Fla. Nov. 30, 2007)
Beaulialice v. Fed. Home Loan Mtge. Corp., No. 8-04-CV-2316-T-24-EAJ, 2007 WL 744646 (M.D. Fla. Mar. 6, 2007)
Casimir v. Sunrise Mtge. Inc., No. 06 C 1211, 2007 WL 2608783 (N.D. Ill. Aug. 31, 2007)
Citizens in Action v. Township of Mt. Holly, 2007 WL 1930457 (N.J. Super. Ct. App. Div. July 5, 2007)
Cooper v. Coldwell Banker, No. 07-1208, 2007 WL 4762982 (W.D. La. Dec. 3, 2007)
Fair Hous. Opps. of NW Ohio, Inc. v. Am. Family Mut. Ins. Co., No. 3:06 CV 1329, 2008 WL 2433775 (N.D. Ohio June 12,
2008)
Farrell v. Ashcombe Dover Homeowners' Ass'n, No. 1:07-CV-2324, 2008 WL 2681659 (M.D. Pa. July 1, 2008)
Hallmark Devs., Inc. v. Fulton County, No. 1:02-CV-01862-ODE, 2007 WL 2819519 (N.D. Ga. Sept. 27, 2007)
Inclusive Communities Proj., Inc. v. Tex. Dep't of Hous. & Community Affairs, No. 3:08-CV-0546-D, 2008 WL 5191935
(N.D. Tex. Dec. 11, 2008)
Johnson v. Equity Title & Escrow Co. of Memphis, LLC, 476 F. Supp. 2d 873 (W.D. Tenn. 2007)
Jones v. Bank of Am., No. G037367, 2007 WL 927819 (Cal. Ct. App. Mar. 29, 2007)
Kennedy v. City of Zanesville, 505 F. Supp. 2d 456 (S.D. Ohio 2007)
Lindsay v. Yates, 498 F.3d 434 (6th Cir. 2007)
Martinez v. Freedom Mtge. Team, Inc., 527 F. Supp. 2d 827 (N.D. Ill. 2007)
McDonald v. Coldwell Banker, 543 F.3d 498 (9th Cir. 2008)
Ohio Civil Rights Comm'n v. Akron Metro. Hous. Auth., 892 N.E.2d 415, 2008-Ohio-3320 (Ohio Ct. App. 2008)
Pina v. Town v. Plympton, 529 F. Supp. 2d 151 (D. Mass. 2007)
Robinson v. Bd. of County Comm'rs, No. RDB-07-1903, 2008 WL 2484936 (D. Md. June 19, 2008)
Roy v. Bd. of County Comm'rs Walton County, No. 3:06CV95/MCR/EMT, 2007 WL 3345352 (N.D. Fla. Nov. 9, 2007)
Taliaferro v. Darby Township Zoning Hearing Bd., No. 2:03-CV-03554-GP, 2008 WL 5574842 (E.D. Pa. July 22, 2008)
The Anderson Group, LLC. v. City of Saratoga Springs, 557 F. Supp. 2d 332 (N.D.N.Y. 2008)
Woods v. Real Renters Ltd., No. 01 Civ. 0269 (Mhd), 2007 WL 656907 (S.D.N.Y. Mar. 1, 2007)
Yaodi Hu v. Cantwell, No. 06 C 6589, 2007 WL 1030468 (N.D. Ill. Mar. 29, 2007)
Fair Housing: National Origin Discrimination
Lozano v. City of Hazleton, 496 F. Supp. 2d 477 (M.D. Pa. 2007)
Pina v. Town v. Plympton, 529 F. Supp. 2d 151 (D. Mass. 2007)
Villas at Parkside Partners v. City of Farmers Branch, 577 F. Supp. 2d 851 (N.D. Tex. 2008)
App 2-10
Yaodi Hu v. Cantwell, No. 06 C 6589, 2007 WL 1030468 (N.D. Ill. Mar. 29, 2007)
Fair Housing: Familial Status Discrimination
Hous. Opps. Proj. for Excellence, Inc. v. Key Colony No. 4 Condo. Ass'n, Inc., 510 F. Supp. 2d 1003 (S.D. Fla. 2007)
Jeffrey O. v. City of Boca Raton, 511 F. Supp. 2d 1339 (S.D. Fla. 2007)
Boston Hous. Auth. v. Bridgewaters, 871 N.E.2d 1107 (Mass. App. Ct. 2007)
Dep’t of Fair Empl. & Hous. v. 1105 Alta Loma Rd. Apts., LLC, 65 Cal. Rptr. 3d 469 (Ct. App. 2007)
Developmental Servs. v. City of Lincoln, 504 F. Supp. 2d 714 (D. Neb. 2007) (City of Lincoln I)
Developmental Servs. v. City of Lincoln, 504 F. Supp. 2d 726 (D. Neb. 2007) (City of Lincoln II)
Equal Rights Ctr. v. Equity Resid., 483 F. Supp. 2d 482 (D. Md. 2007)
Fagundes v. Charter Builders, Inc., No. C 07-1111, 2008 WL 268977 (N.D. Cal. Jan. 29, 2008) (Fagundes II)
Fagundes v. Charter Builders, Inc., No. C 07-1111JF (HRL), 2007 WL 2113575 (N.D. Cal. July 20, 2007) (Fagundes I)
Farrell v. Ashcombe Dover Homeowners' Ass'n, No. 1:07-CV-2324, 2008 WL 2681659 (M.D. Pa. July 1, 2008)
Hirschmann v. Hassapoyannes, 843 N.Y.S.2d 778 (Sup. Ct. 2007)
Human Relations Comm'n ex rel. Price v. Apt. Communities Corp., No. 05C-03-284-JRJ, 2007 WL 1653499 (Del. Super.
Ct. May 30, 2007)
Iowa ex rel. Claypool v. Evans, 757 N.W.2d 166 (Iowa 2008)
Iowa ex rel. Henderson v. Des Moines Mun. Hous. Agency, No. 06-1144, 2007 WL 4553350 (Iowa Ct. App. Dec. 28,
2007)
Jeffrey O. v. City of Boca Raton, 511 F. Supp. 2d 1339 (S.D. Fla. 2007)
Lanier v. Ass'n of Apt. Owners of Villas of Kamali'i, CV No. 06-00558 DAE BMK, 2007 WL 842069 (D. Hawai'i Mar. 16,
2007)
Nevada Fair Hous. Ctr., Inc. v. Clark County, 565 F. Supp. 2d 1178 (D. Nev. 2008)
New Life Outreach Ministry Inc. v. Polk County, No. 8:06-CV-1547-T-27MAP, 2007 WL 2330854 (M.D. Fla. Aug. 14,
2007)
Nolan v. Starlight Pines Homeowners’ Ass’n, 167 P.3d 1277 (Ariz. Ct. App. 2007)
Safe Haven Sober Houses, LLC v. City of Boston, 517 F. Supp. 2d 557 (D. Mass. 2007)
Schwarz v. City of Treasure Island, 521 F. Supp. 2d 1307 (M.D. Fla. 2007)
Sharpvisions, Inc. v. Borough of Plum, 475 F. Supp. 2d 514 (W.D. Pa. 2007)
U.S. v. D.C., 538 F. Supp. 2d 211 (D.D.C. 2008)
U.S. v. Shanrie, No. 05-306-DRH, 2008 WL 4566309 (S.D. Ill. Oct. 1, 2008)
U.S. v. Sharlands Terr., LLC, Nos. 3:04-CV-00292, -00397, 2008 WL 4547209 (D. Nev. Oct. 1, 2008)
DiLiddo v. Oxford Street Realty, Inc., 876 N.E.2d 421 (Mass. 2007)
Greengael, LC v. Bd. of Supervisors of Culpepper County, No. 3:07-CV-00005, 2007 WL 2301570 (W.D. Va. Aug. 7,
2007)
App 2-11
Inclusive Communities Proj., Inc. v. Tex. Dep't of Hous. & Community Affairs, No. 3:08-CV-0546-D, 2008 WL 5191935
(N.D. Tex. Dec. 11, 2008)
Kukui Gardens Ass'n v. Jackson, No. 06-00534 SOM/LEK, 2007 WL 128857 (D. Hawai'i Jan. 11, 2007)
New West, L.P. v. City of Joliet, 491 F.3d 717 (7th Cir. 2007)
Reinhart v. Lincoln County, 482 F.3d 1225 (10th Cir. 2007)
Steinhauser v. City of St. Paul, Nos. 04-2632, 05-641, 05-1348, 2008 WL 5284613 (D. Minn. Dec. 18, 2008)
The Anderson Group, LLC. v. City of Saratoga Springs, 557 F. Supp. 2d 332 (N.D.N.Y. 2008)
Fair Housing: Advertising and Target Marketing
Chicago Lawyers' Comm. for Civil Rights Under Law, Inc. v. Craigslist, 519 F.3d 666 (7th Cir. 2008)
Fair Housing: Other
Robinson v. Bd. of County Comm'rs, No. RDB-07-1903, 2008 WL 2484936 (D. Md. June 19, 2008)
ADA: Employment
Attis v. Solar Realty Dev. Co., 522 F. Supp. 2d 623 (S.D.N.Y. 2007)
Spacek v. Realty One, Inc., No. CV-06-607379, 2008 WL 3089257 (Ohio Com. Pl. Cuyahoga County June 2, 2008)
Technology: State Internet Advertising Rules
Skynet Corp. v. Slattery, No. 06-CV-218-JM, 2007 WL 817638 (D.N.H. Mar. 13, 2007)
Technology: Other
Delta Media Group v. Kee Group, Inc., No. 5:07CV01597, 2007 WL 3232432 (N.D. Ohio Oct. 31, 2007)
Freelty LLC v. Kailas, No. 07-00682-CB, 2007 WL 4867711 (Mich. Cir. Ct. Kent County July 26, 2007)
Anti-trust: Price-fixing
Hyland v. Homeservices of Am., Inc., No. 3:05-CV--612-R, 2008 WL 4000546 (W.D. Ky. Aug. 25, 2008)
Anti-trust: Group Boycotts
Hackman v. Dickerson Realtors, Inc., 520 F. Supp. 2d 984 (N.D. Ill. 2007)
Home Quarters Real Estate Group, LLC v. Michigan Data Exch., Inc., No. 07-12090, 2007 WL 2984120 (E.D. Mich. Oct.
12, 2007)
Just New Homes, Inc. v. Beazer Homes, No. 05-04198-JF, 2007 WL 201014 (E.D. Pa. Jan. 22, 2007), aff'd, 293 Fed.
Appx. 931 (3d Cir. 2008)
Anti-trust: Tying Agreements
Bafus v. Aspen Realty, Inc., Nos. CV-04-121-5-BLW, CV-06-059-5-BLW, CV-06-060-5-BLW, CV-06-061-5-BLW, 2007
WL 793633 (D. Idaho, Mar. 14, 2007)
Bafus/Dudley v. Aspen Realty, Inc., 2007 WL 4261759 (D. Idaho Nov. 30, 2007)
Yeatman v. D.R. Horton, Inc., No. 407CV081, 2008 WL 1847087 (S.D. Ga. Apr. 23, 2008)
App 2-12
Anti-trust: Other
Hackman v. Dickerson Realtors, Inc. 520 F. Supp. 2d 984 (N.D. Ill. 2007)
Just New Homes, Inc. v. Beazer Homes, 293 Fed. Appx. 931 (3d Cir. 2008), cert. denied, 129 S. Ct. 1363 (2009)
Mountain Area Realty, Inc. v. Wintergreen Partners, Inc., No. 3:07CV00016, 2007 WL 4561293 (W.D. Va. Dec. 21, 2007)
U.S. v. Nat'l Ass'n of REALTORS®, No. 05-C-5140, 2008 WL 5411637 (N.D. Ill. Nov. 18, 2008)
Bamba v. Resource Bank, 568 F. Supp. 2d 32 (D.D.C. 2008)
Bosch v. Lattina, No. 08-CV-238(SS)(AKT), 2008 WL 4820247 (E.D.N.Y. Nov. 4, 2008)
Carr v. Home Tech. Co., 476 F. Supp. 2d 859 (W.D. Tenn. 2007)
Clark v. Hamilton Mtge. Co., No. 1:07-CV-252, 2008 WL 4899471 (W.D. Mich. Nov. 12, 2008)
De Jesus-Serrano v. Sana Inv. Mtge. Bankers, Inc., 552 F. Supp. 2d 191 (D.P.R. 2007)
Hafford v. Equity One, Inc., Nos. AW-07-1633, AW-06-0975, 2008 WL 906015 (D. Md. Mar. 31, 2008)
Jeffries v. Ameriquest Mtge. Co., 543 F. Supp. 2d 368 (E.D. Pa. 2008)
Johnson v. Equity Title & Escrow Co. of Memphis, LLC, 476 F. Supp. 2d 873 (W.D. Tenn. 2007)
Miner v. Beneficial Mtge. Co. (In re Miner), 369 B.R. 655 (Bankr. D. Kan. 2007)
Pierce v. Novastar Mtge., Inc., 489 F. Supp. 2d 1206 (W.D. Wash. 2007)
Pierce v. Novastar Mtge., Inc., No. C05-5835RJB, 2007 WL 836714 (W.D. Wash. Mar. 15, 2007)
Rose v. SLM Fin. Corp., No. 3:05CV445, 2007 WL 674319 (W.D.N.C. Feb. 28, 2007)
Stetler v. Greenpoint Mtge. Funding, Inc., No. 1:07cv0123 DLB, 2008 WL 192405 (E.D. Cal. Jan. 23, 2008)
Walker v. Artisan Mtge., LLC, No. CV-08-0106-PHX-FJM, 2008 WL 2026365 (D. Ariz. May 9, 2008)
Wells Fargo Fin., Inc. v. Daum, No. 05 C 4192, 2007 WL 2743034 (N.D. Ill. Sept. 10, 2007)
RESPA: Kickbacks
Alexander v. Washington Mut. Inc., No. 07-4426, 2008 WL 2600323 (E.D. Pa. June 30, 2008)
Alexander v. Washington Mut. Inc., No. 07-4426, 2008 WL 3285845 (E.D. Pa. Aug. 4, 2008)
Alston v. Countrywide Fin. Corp., No. 07-3508, 2008 WL 4444243 (E.D. Pa. Sept. 29, 2008)
Bafus v. Aspen Realty, Inc., Nos. CV-04-121-5-BLW, CV-06-059-5-BLW, CV-06-060-5-BLW, CV-06-061-5-BLW, 2007
WL 793633 (D. Idaho, Mar. 14, 2007)
Barnett v. Chicago Title Ins. Co., No. 08-652, 2008 WL 3411684 (E.D. Pa. Aug. 11, 2008)
Blaylock v. First Am. Title Ins. Co., 504 F. Supp. 2d 1091 (W.D. Wash. 2007)
Bosch v. Lattina, No. 08-CV-238(SS)(AKT), 2008 WL 4820247 (E.D.N.Y. Nov. 4, 2008)
Boudin v. Residential Essentials, LLC, No. 07-0018-W5-C, 2007 WL 2023466 (S.D. Ala. July 10, 2007)
Bradford v. WR Starkey Mtge., LLP, No:2:06-CV-86, 2008 WL 4501957 (N.D. Ga. Feb. 22, 2008)
Busby v. JRHBW Realty, Inc., 513 F.3d 1314 (11th Cir. 2008)
Carter v. Welles-Bowen Realty, Inc., 493 F. Supp. 2d. 921 (N.D. Ohio 2007)
Cedeno v. Indy Mac Bancorp, Inc., No. 06 Civ. 6438 (JGK), 2008 WL 3992304 (S.D.N.Y. Aug. 26, 2008)
Clifford v. FMF Capital, LLC, No. 1:06-CV-316, 2007 WL 1701816 (W.D. Mich. June 11, 2007)
Cohen v. JP Morgan Chase Co., 498 F.3d 111 (2d Cir. 2007)
App 2-13
Contos v. Wells Fargo Escrow Co., LLC, No. C08-8382, 2008 WL 4460300 (W.D. Wash. Oct. 1, 2008)
Culpepper v. Irwin Mtge. Corp., 491 F.3d 1260 (11th Cir. 2007)
Edwards v. Accredited Home Lenders, Inc., No. 07-0160-KD-C, 2007 WL 5022185 (S.D. Ala. Oct. 23, 2007) (Edwards I)
Edwards v. Accredited Home Lenders, Inc., No. 07-0160-KD-C, 2008 WL 2952075 (S.D. Ala. Jul. 29, 2008) (Edwards II)
Edwards v. First Am. Corp., 251 F.R.D. 449 (C.D. Cal. 2007) (Edwards II)
Edwards v. First Am. Corp., 251 F.R.D. 454 (C.D. Cal. 2008) (Edwards III)
Edwards v. First Am. Corp., 517 F. Supp. 2d 1199 (C.D. Cal. 2007) (Edwards I)
Egerer v. Woodland Realty, Inc., No. 1:06-CV-789, 2007 WL 3467263 (W.D. Mich. Nov. 13, 2007)
Estate of Ellison v. Class.com, Inc., No. 08-162-M, 2008 WL 2468570 (S.D. Ala. June 16, 2008)
Friedman v. Market St. Mtge. Corp., 520 F.3d 1289 (11th Cir. 2008)
Hamilton v. First Am. Title Co., No. 3:07-CV-1442-G, 2008 WL 332803 (N.D. Tex. Feb. 13, 2008)
Hancock v. Chicago Title Inc., No. 3:07-CV-1441-D, 2008 WL 4344620 (N.D. Tex.Sept. 23, 2008)
Hazewood v. Foundation Fin. Group, LLC, 551 F.3d 1223 (11th Cir. 2008) (Hazewood II)
Hazewood v. Foundation Fin. Group, LLC, No. 07-0171-WS-B, 2007 WL 1975446 (S.D. Ala. July 2, 2007) (Hazewood I),
aff'd, 551 F.3d 1223 (11th Cir. 2008)
Hepler v. Washington Mut. Bank, No. CV07-4804CAS(ex), 2008 WL 4691000 (C.D. Cal. Nov. 4, 2008)
In re Community Bank of No. Va. & Guaranty Bank Second Mtge. Litig., Nos. 02-1201, 03-425, 03-1380, 05-589, 05-590,
05-688, 05-1386, 06-768, 2007 WL 2008494 (W.D. Pa. July 5, 2007)
Kay v. Wells Fargo & Co., 247 F.R.D. 572 (N.D. Cal. 2007)
Krupa v. Landsafe, Inc., 514 F.3d 1153 (11th Cir. 2008)
Loften v. Diolosa, No. 3:CV-05-1193, 2008 WL 2994823 (M.D. Pa. Jul. 31, 2008)
Maganallez v. Hilltop Lending Corp., 505 F. Supp. 2d 594 (N.D. Cal. 2007)
Mallory v. GMS Funding, LLC, No. 07-0680-WS-C, 2008 WL 2782886 (S.D. Ala. Jul. 8, 2008)
Marcelos v. Dominguez, No. C 08-00056 WHA, 2008 WL 1820683 (N.D. Cal. Apr. 21, 2008)
Martinez v. Freedom Mtge. Team, Inc., 527 F. Supp. 2d 827 (N.D. Ill. 2007)
Martinez v. Wells Fargo Bank, No. C-06-03327 RMW, 2007 WL 963965 (N.D. Cal. Mar. 30, 2007)
Mims v. Stewart Title Guar. Co., 254 F.R.D. 482 (N.D. Tex. 2008) (Mims II)
Mims v. Stewart Title Guar. Co., 521 F. Supp. 2d 568 (N.D. Tex. 2007) (Mims I)
Moody v. Commonwealth Land Title Ins. Co., 284 Fed. Appx. 735 (11th Cir. 2008)
Morrisette v. Novastar Home Mtge., Inc., 284 Fed. Appx. 729 (11th Cir. 2008) (Morrisette II)
Morrisette v. Novastar Home Mtge., Inc., 484 F. Supp. 2d 1227 (S.D. Ala. 2007) (Morrisette I), aff'd on appeal, 282 Fed.
Appx. 729 (11th Cir. 2008)
Patino v. Lawyers Title Ins. Corp., No. 3:06-CV-1479-B, 2007 WL 4687748 (N.D. Tex. Jan. 11, 2007)
Perkins v. Johnson, 551 F. Supp. 2d 1246 (D. Colo. 2008) (Perkins II)
Perkins v. Johnson, No. 06-CV-01503, 2007 WL 521172 (D. Colo. Feb. 14, 2007) (Perkins I)
Perkins v. Johnson, No. 1:06-CV-01503, 2008 WL 5568181 (D. Colo. Mar. 6, 2008) (Perkins III)
Pettrey v. Enterprise Title Agency, Inc., 242 F.R.D. 384 (N.D. Ohio 2007)
Poe v. First Franklin Fin. Corp., No. 4:06cv432, 2007 WL 2901126 (E.D. Tex. Sept. 28, 2007)
Prince-Servance v. Bank United, No. 07 C 1259, 2007 WL 3254432 (N.D. Ill. Nov. 1, 2007)
Qunitos v. Decision One Mtge. Co., No. 08-CV-1757 JM (PUR), 2008 WL 5411636 (S.D. Cal. Dec. 29, 2008)
Robinson v. Fountainhead Title Group Corp., 252 F.R.D. 275 (D. Md. 2008)
App 2-14
Sharbough v. First Am. Title Ins. Co., No. 07 C 2928, 2007 WL 3307019 (N.D. Ill. Nov. 2, 2007)
Simpson v. Aapex Fin. Group, Inc., No. 1:07cv1304 AWJ DCB, 2008 WL 3540601 (E.D. Cal. Aug. 11, 2008)
Smith v. ABN AMRO Mtge. Group Inc., No. 1:06CV45, 2007 WL 950334 (S.D. Ohio Mar. 27, 2007)
Smith v. Encore Credit Corp., No. 4:08 CV 1462, 2008 WL 5169683 (N.D. Ohio Dec. 9, 2008)
Spicer v. Ryland Group, Inc., 523 F. Supp. 2d 1356 (N.D. Ga. 2007), aff'd, 294 Fed. Appx. 434 (11th Cir. 2008)
Stetler v. Greenpoint Mtge. Funding, Inc., No. 1:07cv0123 DLB, 2008 WL 192405 (E.D. Cal. Jan. 23, 2008)
Stetler v. Greenpoint Mtge. Funding, Inc., No. 1:07cv0123 DLB, 2008 WL 652117 (E.D. Cal. Mar. 7, 2008)
Travis v. Prime Lending, No. 3:07CV00065, 2008 WL 2397330 (W.D. Va. June 12, 2008)
Valdez v. Downey Savings & Loan, No. C 06-2541 (HRL), 2008 WL 4452116 (N.D. Cal. Oct. 3, 2008)
Wentz v. Saxon Mtge. (In re Wentz), 393 B.R. 545 (Bankr. S.D. Ohio 2008)
Williams v. Berkshire Fin. Group, Inc., 491 F. Supp. 2d 320 (E.D.N.Y. 2007)
Williams v. Countrywide Home Loans, Inc., 284 Fed. Appx. 724 (11th Cir. 2008) (Williams III)
Williams v. Richmond Title Servs., LP, No. 07-0879-KD-M, 2008 WL 2485831 (S.D. Ala. June 13, 2008)
Williams v. Saxon Mtge. Servs., Inc., No. 06-0799-WS-B, 2007 WL 282752 (S.D. Ala. Sept. 27, 2007) (Williams II), aff'd,
284 Fed. Appx. 724 (5th Cir. 2008)
Williams v. Saxon Mtge. Servs., Inc., No. 06-0799-WS-B, 2007 WL 1845642 (S.D. Ala. June 25, 2007) (Williams I), aff'd,
284 Fed. Appx. 724 (5th Cir. 2008)
Wooten v. Quicken Loans, Inc., No. 07-00478-CG-C, 2008 WL 687379 (S.D. Ala. Mar. 10, 2008)
Yates v. All Am. Abstract Co., 487 F. Supp. 2d 579 (E.D. Pa. 2007)
RESPA: Affiliated Business Arrangements
Capell v. Pulte Mtge., L.L.C., No. 07-1901, 2007 WL 3342389 (E.D. Pa. Nov. 7, 2007)
Capell v. Pulte Mtge., L.L.C., No. 07-1901, 2008 WL 269521 (E.D. Pa. Jan. 14, 2008)
Carter v. Welles-Bowen Realty, Inc., 493 F. Supp. 2d. 921 (N.D. Ohio 2007)
Chelsea Condo. Unit Owners Ass'n v. 1815 A St. Condo. Group. LLC, 468 F. Supp. 2d 136 (D.D.C. 2007)
Egerer v. Woodland Realty, Inc., No. 1:06-CV-789, 2007 WL 3467263 (W.D. Mich. Nov. 13, 2007)
Heaney v. Prudential Real Estate Affiliates, Inc., No. 05-820, 2008 WL 2704542 (E.D. La. Jul. 3, 2008)
Hopkins v. Horizon Mgmt. Servs., Inc., 515 F. Supp. 2d 649 (D.S.C. 2007), aff'd, No. 07-1965, 2008 WL 5080983 (4th Cir.
Dec. 3, 2008)
Hopkins v. Horizon Mgmt. Servs., Inc., No. 07-1965, 2008 WL 5080983 (4th Cir. Dec. 3, 2008)
Kay v. Wells Fargo & Co., 247 F.R.D. 572 (N.D. Cal. 2007)
Kay v. Wells Fargo & Co., No. C 07-01351WHA, 2007 WL 2141292 (N.D. Cal. Jul. 24, 2007)
Parra v. Minto Town Park, LLC, No. 08-14168-CIV, 2008 WL 4773272 (S.D. Fla. Oct. 30, 2008)
Pettrey v. Enterprise Title Agency, Inc., 242 F.R.D. 384 (N.D. Ohio 2007)
Robinson v. Fountainhead Title Group Corp., 252 F.R.D. 275 (D. Md. 2008)
Spicer v. Ryland Group, Inc., 523 F. Supp. 2d 1356 (N.D. Ga. 2007), aff'd, 294 Fed. Appx. 434 (11th Cir. 2008)
Yeatman v. D.R. Horton, Inc., No. 407CV081, 2008 WL 1847087 (S.D. Ga. Apr. 23, 2008)
RESPA: Other
Ianuzzi v. Washington Mut. Bank, No. 07-CV-964(JFB)(WDW), 2008 WL 3978789 (E.D.N.Y. Aug. 21, 2008)
Meeks-Owens v. Indymac Bank, 557 F. Supp. 2d 566 (M.D. Pa. 2008)
App 2-15
Decatur Ventures, LLC v. Daniel, 485 F.3d 384 (7th Cir. 2007)
Knuckles v. RBMG, Inc., 481 F. Supp. 2d 559 (S.D. W. Va. 2007)
Kurz v. Werner, No. 070100591, 2008 WL 3473230 (Pa. Com. Pl. Phila. County Feb. 28, 2008)
Church v. Fleishour Homes, Inc., 874 N.E.2d 795 (Ohio Ct. App. 2007)
Collins v. County Termite & Pest Control LLC, No. CL43632, 2007 WL 5731973 (Va. Cir. Ct. Loudoun County Nov. 29,
2007)
Hendren v. Hall, No. 0616CV03558, 2007 WL 1705042 (Mo. Cir. Ct. Jackson County Apr. 5, 2007)
Lydon v. Poudrier, No. CA05-0828A, 2007 WL 4953298 (Mass. Super. Ct. Plymouth County Oct. 1, 2007)
Robinson v. Brown, No. 05-CV-0492, 2007 WL 2403547 (Kan. Dist. Ct. Reno County June 8, 2007)
Walter v. Barnett, No. 06-2-00015-2, 2007 WL 6002095 (Wash. Super. Ct. Columbia County Oct. 19, 2007)
Third-Party Liability: Other
Arellano v. Montoya (In re Arellano), 384 B.R. 586 (Bankr. D.N.M. 2008)
I-20 Corridor Props., LLC v. Mahony Title Servs, LLC, 986 So. 2d 821 (La. Ct. App. 2008)
Rankin v. Dault (In re Rankin), 396 B.R. 203 (E.D. Mich. 2008)
Sign Ordinances
Fourth La Costa Condo. Owners v. Seith, 71 Cal. Rptr. 299 (Ct. App. 2008)
Godley Park Homeowners' Ass’n, Inc. v. Bowen, 649 S.E.2d 308 (Ga. Ct. App. 2007)
Deceptive Trade Practices Act and Fraud
Albarello, Inc. v. Carr, No. CV075010721S, 2007 WL 4801299 (Conn. Super. Ct. Dec. 31, 2007)
Aquino v. Goldfadim, No. C-02-37203, 2008 WL 3088833 (Md. Cir. Ct. Carroll County Mar. 24, 2008)
Bafus/Dudley v. Aspen Realty, Inc., 2007 WL 4261759 (D. Idaho Nov. 30, 2007)
Bankers Realty, Inc. v. Shiotsugu, No. B190143, 2008 WL 73691 (Cal. Ct. App. Jan. 8, 2008)
Barret v. Moore, No. 06-2-14118-6, 2007 WL 5793482 (Wash. Super. Ct. Pierce County Aug. 9, 2007)
Bloor v. Fritz, 180 P.3d 805 (Wash. Ct. App. 2008)
Blyth v. McCrary, 646 S.E.2d 813 (N.C. Ct. App. 2007)
Brown v. IM Realty, No. MER-L-1211-06, 2008 WL 2663089 (N.J. Super. Ct. Law Div. Mar. 26, 2008)
Burke v. Sea Point Realtors, 947 A.2d 686 (N.J. Super. Ct. App. Div. 2008)
Casimir v. Sunrise Mtge. Inc., No. 06 C 1211, 2007 WL 2608783 (N.D. Ill. Aug. 31, 2007)
Chelsea Condo. Unit Owners Ass'n v. 1815 A St. Condo. Group. LLC, 468 F. Supp. 2d 136 (D.D.C. 2007)
App 2-16
Childers v. Schwartz, 262 S.W.3d 698 (Mo. Ct. App. 2008)
Chumley v. Today's Realty, Inc., 995 So. 2d 676 (La. Ct. App. 2008)
Connecticut v. Royal Fin. Servs., LLC, No. CV074032754, 2008 WL 4683861 (Conn. Super. Ct. Oct 3, 2008)
Consolidated Fund Mgmt. LLC v. Callaway, No. 200635960, 2008 WL 4837750 (Tex. Dist. Ct. Harris County July 17,
2008)
Cullop v. Land Resource Co., No. 2:06-CV-207, 2007 WL 445823 (E.D. Tenn. Feb. 6, 2007)
Elgersma v. Re/Max of Grand Rapids, No. 05-10539-CK, 2008 WL 4455629 (Mich. Cir. Ct. Kent County June 2, 2008)
Finfer v. Favela, No. BC317103, 2008 WL 5716132 (Cal. Super. Ct. L.A. County Apr. 2, 2008)
Foster v. Wintergreen Real Estate Co., No. 3:08cv00031, 2008 WL 4829674 (W.D. Va. Nov. 6, 2008)
Friedler v. Palyompis, 845 N.Y.S.2d 347 (App. Div. 2007)
Giddeon v. Weekley Homes, L.P., No. 2003-CI-14883, 2007 WL 5122969 (Tex. Dist. Ct. Bexar County Dec. 20, 2007)
Grammer v. Asbury, No. F050176, 2007 WL 3105442 (Cal. Ct. App. Oct. 25, 2007)
Grindinger v. Kixmiller, No. 2-06-221-CV, 2007 WL 529954 (Tex. App.–Fort Worth Feb. 22, 2007)
Guest v. Rose, No. B189582, 2007 WL 2758640 (Cal. Ct. App. Sept. 24, 2007)
Jackson v. Morris, No. 061101013, 2008 WL 2663164 (Pa. Com. Pl. Phila. County Mar. 7, 2008)
Joung v. Shin, No. 029613, 2007 WL 512756 (Cal. Ct. App. Feb. 20, 2007)
Kim v. Mansoori, 153 P.3d 1086 (Ariz. Ct. App.2007)
Laignel v. DeGrande, No. 07CV2654, 2008 WL 5100871 (Colo. Dist. Ct. Jefferson County Apr. 23, 2008)
Marsh v. Wallace, No. 4:07CV60TSL-LRS, 2008 WL 4000809 (S.D. Miss. Aug. 22, 2008)
Matzke v. Alderman, No. 07-2-00845-1, 2008 WL 547913 (Wash. Super. Ct. Benton County July 9, 2008)
Orellana v. Chiera, No. CV0760004889S, 2008 WL 4779738 (Conn. Super. Ct. Oct. 10, 2008)
Orland v. Kukielka, 836 N.Y.S.2d 252 (App. Div. 2007)
Osterhaus v. Toth, 187 P.3d 126 (Kan. Ct. App. 2008)
Partout v. Adams County Real Estate Inc., No. CV05-0001739, 2008 WL 1850811 (Idaho Dist. Ct. Adams County Mar.
17, 2008)
Perez v. Cimini, No. CV075011036S, 2008 WL 1823065 (Conn. Super. Ct. Apr. 4, 2008)
Phan v. Addison Spectrum, L.P., 244 S.W.3d 892 (Tex. App.–Dallas 2008)
Pleasant v. Bradford, 260 S.W.3d 546 (Tex. App.–Austin 2008)
Preview Props., Inc. v. Landis, 165 P.3d 1 (Wash. 2007)
Quinlan v. Clasby, 879 N.E.2d 703 (Mass. App. Ct. 2008)
Rhue v. Shay, No. B187688, 2007 WL 765957 (Cal. Ct. App. Mar. 15, 2007)
Rose v. Katsaras, No. B194202, 2007 WL 3151335 (Cal. Ct. App. Oct. 30, 2007)
Ruddy v. REINV, No. CV-04-0412303-S, 2008 WL 5688343 (Conn. Super. Ct. Fairfield Sept. 24, 2008)
S.N.R. Mgmt. Corp. v. Danube Partners 141, LLC, 659 S.E.2d 442 (N.C. Ct. App. 2008)
App 2-17
Schnellmann v. Roettger, 645 S.E.2d 239 (S.C. 2007)
Schwartz v. Rockey, 932 A.2d 885 (Pa. 2007)
Sewell v. D'Alessandro & Woodyard, Inc., No. 2:07-CV-343-FLM-29 SPC, 2008 WL 4459260 (M.D. Fla, Sept. 29, 2008)
Spencer v. Green, 842 N.Y.S.2d 445 (App. Div. 2007)
Stussy v. Gabbert & Gabbert Co., No. A07-1875, 2008 WL 4133856 (Minn. Ct. App. Sept. 9, 2008)
Tuccio Dev., Inc. v. Neumann, 960 A.2d 1071 (Conn. App. Ct. 2008)
Valdez v. Downey Sav. & Loan Ass'n, Nos. 43, 46, 2007 WL 1140635 (N.D. Cal. Apr. 17, 2007)
Wehner v. Built-Rite, Inc., No. WOCV2002-000024, 2007 WL 5613344 (Mass. Super. Ct. Worcester County July 26,
2007)
Williams v. Windermere Real Estate/East, Inc., No. 57756-5-I, 2007 WL 1180649 (Wash. Ct. App. Apr. 23, 2007)
Woods v. Real Renters Ltd., No. 01 Civ. 0269 (Mhd), 2007 WL 656907 (S.D.N.Y. Mar. 1, 2007)
Yslas v. Romero, No. B204762, 2008 WL 5394944 (Cal. Ct. App. Dec. 1, 2008)
“Flipping”
U.S. v. Kitchen, No. 2:07-CR-895 TS, 2008 WL 2997315 (D. Utah July 31, 2008)
“As-Is” Clauses
ERA Class.com, Inc. v. Stoddard, 987 So. 2d 1130 (Ala. Civ. App. 2007), cert. denied (Ala. Dec. 21, 2007)
May 30, 2008)
Richards v. ABN AMRO Mtge. Group, Inc., 261 S.W.3d 603 (Mo. Ct. App. 2008)
Ace Realty & Appraisal, Inc. v. Schmiesing, No. 73-C3-07-638, 2007 WL 5516619 (Minn. Dist. Ct. Stearns County Nov. 2,
2007)
Affiliated Brokers v. Alexander-Lewis, No. A112573, 2007 WL 61082 (Cal. Ct. App. Jan. 10, 2007)
Amber Hotel Co. v. 4229 West 101st Assocs., No. BC320244, 2007 WL 4322374 (Cal. Super. Ct. L.A. County Oct. 23,
2007)
AMC, Inc. v. Phan, No. G037001, 2007 WL 810578 (Cal. Ct. App. Mar. 19, 2007)
American Dream Home Realty Corp. v. Tapia, 2007 WL 2089399 (N.J. Super Ct. App. Div. June 19, 2007)
Antrim, Piper, Wenger, Inc. v. Lowe, 159 P.3d 215 (Kan. Ct. App. 2007)
Argent Real Estate Servs., LLC v. Kaminski, No. A06-1769, 2007 WL 2998593 (Minn. Ct. App. Oct. 16, 2007)
Ashbaugh v. Horvath, 859 N.E.2d 1260 (Ind. Ct. App. 2007)
Axline v. Baisey, No. C07002187, 2008 WL 5083182 (Md. Cir. Ct. Frederick County July 10, 2008)
B.P. Vance Real Estate, Inc. v. Tamir, 839 N.Y.S.2d 494 (App. Div. 2007)
Baker v. Maclay Props. Co., No. 2006 CA 1000, 2007 WL 1300820 (La. Ct. App. May 4, 2007)
App 2-18
Banks v. Schutter, No. 08-2677, 2008 WL 4826285 (E.D. Pa. Nov. 6, 2008)
Barnett v. Saizor, 994 So. 2d 668 (La. Ct. App. 2008)
Beitler & Assoc., Inc. v. Way Off Broadway, LLC, No. B202735, 2008 WL 4228364 (Cal. Ct. App. Sept. 17, 2008)
Ben Farmer Realty, Inc. v. Owens, 649 S.E.2d 771 (Ga. Ct. App. 2007)
Berry v. Tilley, 838 N.Y.S.2d 647 (App. Div. 2007)
Billingslea v. Brayson Homes, Inc., No. 1:04-CV-00962-JEC, 2007 WL 2118990 (N.D. Ga. July 20, 2007)
Bogdanov v. Laflamme (In re Laflamme), 397 B.R. 194 (D.N.H. 2008)
Bolton Conductive Sys., L.L.C. v. Trauben, No. 278552, 2008 WL 5056640 (Mich. Ct. App. Oct. 14, 2008)
Brochu v. Santis, 939 A.2d 449 (R.I. 2008)
BSP/Port Orange, LLC v. Water Mill Props., Inc., 969 So. 2d 1077 (Fla. Dist. Ct. App. 2007)
Calhoun Realty Co. v. Ecklund, No. 27-CV06-8496, 2007 WL 4766449 (Minn. Dist. Ct. Hennepin County Oct. 30, 2007)
Canton v. Smeed, No. S-1500-CV-260701, 2008 WL 2345484 (Cal. Super. Ct. Kern County Apr. 30, 2008)
Capital 1 Comm'l Group, Inc. v. Tortira, No. 274542, 2007 WL 1485865 (Mich. Ct. App. May 22, 2007)
Cavagnaro v. Coldwell Banker Alfonso Realty, Inc., 995 So. 2d 754 (Miss. Ct. App. 2008)
CB Richard Ellis Real Estate Servs., Inc. v. Spitz, 950 A.2d 704 (D.C. 2008)
Century 21 Access Am. v. Palomino, No. CV054017953S, 2007 WL 1675658 (Conn. Super. Ct. May 23, 2007)
Charles Dunn Co. v. Kymm Family Trust, No. AR9000, 2008 WL 5459887 (Cal. Super. Ct. Dec. 15, 2008)
Childers v. Schwartz, 262 S.W.3d 698 (Mo. Ct. App. 2008)
City Ctr. Real Estate, Inc. v. Berger, 833 N.Y.S.2d 75 (App. Div. 2007)
Commercial Ventures, Inc. v. Rex M. & Lynn Lea Family Trust, 177 P.3d 955 (Idaho 2008)
Comtide Holdings, LLC v. Booth Creek Mgmt. Corp., 554 F. Supp. 2d 821 (S.D. Ohio 2008)
Corporate Props., Ltd. v. Hershey Co., No. CV 05-231-S-MHW, 2007 WL 496380 (D. Idaho Feb. 13, 2007)
Dabbs v. SRE, Inc., 992 So. 2d15 (Ala. Civ. App. 2008)
Desgrange v. Waser, No. 4010061707, 2008 WL 2901986 (Tex. Dist. Ct. Collin County June 4, 2008)
Devine Real Estate v. Brennan, 839 N.Y.S.2d 581 (App. Div. 2007)
Domico v. Downey, No. 06-CV-02474-BMS, 2007 WL 2850328 (E.D. Pa. July 19, 2007)
Donahue v. Signature Group of Sarasota LLC, No. 2006 CA 11500, 2007 WL 4854335 (Fla. County Court Sarasota
County Apr. 24, 2007)
Dorian M. Bennett, Inc. v. Shankle, 974 So. 2d 777 (La. Ct. App. 2007)
Dorian M. Bennett, Inc. v. Shankle, No. 02-1950, 2007 WL 4901083 (La. Civ. Dist. Ct. Orleans Parish Mar. 19, 2007)
Dover Realty Co. v. Pecce, 671 S.E.2d 257 (Ga. Ct. App. 2008)
Eitel v. Owen, No. 2007-CA-002164-MR, 2008 WL 4271698 (Ky. Ct. App. Sept. 19, 2008)
ERA Muscle Real Estate Co. v. Gammon, No. A07-0362, 2008 WL 1971519 (Minn. Ct. App. May 6, 2008)
Exit A Plus Realty v. Zuniga, 930 A.2d 491 (N.J. Super. Ct. App. Div. 2007)
F. Richard Wolff & Son, Inc. v. Tutora, 856 N.Y.S.2d 241 (App. Div. 2008)
FGH Realty, LLC v. Centex Homes, LLC, 2008 WL 4933931 (N.J. Super. Ct. App. Div. Nov. 20, 2008)
Fischer v. RWSP Realty, LLC, 862 N.Y.S.2d 539 (App. Div. 2008)
Franklin v. Blount, No. 2006 CA 0847, 2007 WL 437691 (La. Ct. App. Feb. 9, 2007)
Franson v. Northcliff Dev., No. CV07-00909, 2008 WL 5723903 (Nev. Dist. Ct. Washoe County Jan. 13, 2008)
App 2-19
Gabrielli v. Roundout, L.L.C., No. 1:07-CV-050, 2007 WL 2406905 (N.D.N.Y. Aug. 21, 2007)
George v. Martin, No. 2:06-CV-1112-PMP-GWF, 2007 WL 4631263 (D. Nev. Dec. 27, 2007)
GK Realty Servs., LLC v. Stopar, No. A-2142-06T5, 2008 WL 657126 (N.J. Super. Ct. App. Div. Mar. 13, 2008)
Goodstein Realty Boca Raton v. Gelinas (In re Gelinas), No. 06-1356-BKC-PGU-A, 2007 WL 1184075 (Bankr. S.D. Fla.
Apr. 18, 2007)
Granger v. Schachenmayr, 857 N.Y.S.2d 239 (App. Div. 2008)
Gray & Co. Realtors, Inc. v. Atlantic Hous. Fdn., Inc., 228 S.W.3d 431 (Tex. App.–Dallas 2007)
Green v. Betsy Wilson Realty, No. 07-0133, 2008 WL 5691207 (Ky. Cir. Ct. Boyle County Aug. 29, 2008)
Halstead Brooklyn, LLC v. 96-98 Baltic, LLC, 854 N.Y.S.2d 437 (App. Div. 2008)
Hare v. McConnell, No. 27-CV-07-13270, 2008 WL 2414325 (Minn. Dist. Ct. Hennepin County Feb. 5, 2008)
Hentze-Dor Real Estate, Inc. v. D’Allesio, 836 N.Y.S.2d 265 (App. Div. 2007)
Hill v. Boozer, 658 S.E.2d 268 (Ga. Ct. App. 2008)
Hinckley v. Gould, Cooksley, Fennel, O'Neill, Marine, Carter & Hafner, P.A., No. 5D06-4245, 2007 WL 4546767 (Fla. Dist.
Ct. App. Dec. 28, 2007)
Hitt v. Homes & Land Brokers, Inc., 993 So. 2d 1162 (Fla. Dist. Ct. App. 2008)
Homespring, LLC v. Hyung Young Lee, 866 N.Y.S.2d 212 (App. Div. 2008)
Horning Group, Inc. v. Wayland, No. 06-CA-49, 2007 WL 2893427, 2007-Ohio-5357 (Ohio Ct. App. Sept. 27, 2007)
Horrow Sports Ventures, LLC v. Anschutz Entertainment Group, Inc., 2008 WL 4646913 (N.J. Super. Ct. App. Div. 2008)
Hunziker & Assocs. Inc. v. Johnson, No. LACV37220, 2007 WL 5029492 (Iowa Dist. Ct. Boone County Aug. 23, 2007)
In re Gunn, No. 08-43172, 2008 WL 3548001 (Bankr. N.D. Cal. Aug. 11, 2008)
In re Olympus Constr., LC, 173 P.3d 192 (Utah Ct. App. 2007)
Jenson v. Mohave Homes & Land, Inc., No. CV2006-002611, 2008 WL 4868194 (Ariz. Super. Ct. Maricopa County Apr.
25, 2008)
Johnson Props. Inc. v. Miller, No. 05 L 541, 2007 WL 5395711 (Ill. Cir. Ct. St. Clair County Sept. 25, 2007)
Kalmon Dologin Affiliates Inc. v. Atlantic Realty, LLC, No. 242/05, 2007 WL 1364530 (N.Y. Sup. Ct. Kings County Mar. 12,
2007)
Kaplan v. Patriot Real Estate, Inc., No. 07-ADMS-40013, 2008 WL 4411310 (Mass. App. Div. Sept. 18, 2008)
Karlsson Group, Inc. v. Langley Farm Inv., LLC, No. CV-07-0457-PHX-PGR, 2008 WL 4183025 (D. Ariz. Sept. 8, 2008)
Kennedy v. Kennedy, No. 1:08-00891, 2008 WL 4103991 (S.D. W. Va. Aug. 29, 2008)
Kentucky Real Estate Comm'n v. Hilliard Fin., LLC, 246 S.W.3d 910 (Ky. Ct. App. 2008)
Klein v. Antebi, 832 N.Y.S.2d 904 (Sup. Ct. 2007)
Klein v. Antebi, 861 N.Y.S.2d 143 (App. Div. 2008)
Lake Sue Dev. Co. v. Keewin Real Prop. Co., 950 So. 2d 1280 (Fla. Dist. Ct. App. 2007)
Landover Corp. v. Bellevue Master LLC, 252 Fed. Appx. 800 (9th Cir. 2007)
Lane v. Floyd, 159 P.3d 1240 (Or. Ct. App. 2007)
Larson v. Johnson, No. CIV 07-0063-PCT-SMM, 2007 WL 3390883 (D. Ariz. Nov. 13, 2007)
Liggett Realtors, Inc. v. Gresham, 831 N.Y.S.2d 59 (App. Div. 2007)
Location Realty Inc. v. Colaccino, 949 A.2d 1189 (Conn. 2008)
Mabey v. Maggas, No. M2006-02689-COA-R3-CV, 2007 WL 2713726 (Tenn. Ct. App. Sept. 18, 2007)
Marlowe v. D.R. Horton Inc., No. RG05215756, 2007 WL 4976566 (Cal. Super. Ct. Alameda County May 7, 2007)
Massof v. Lages (In re Lages), 386 B.R. 590 (Bankr. W.D. Pa. 2008)
App 2-20
McAfee Enters., Inc. v. 6006 of Jacksonville, Inc., No. 16-2006-CA-00477, 2008 WL 2550695 (Fla. Cir. Ct. Duval County
Jan. 30, 2008)
McAlary v. Parno, No. RIC459887, 2007 WL 5391097 (Cal. Super. Ct. Dec. 19, 2007)
McCamish v. Land Resources, LLC, No. 3:05-CV-501, 2007 WL 3120804 (E.D. Tenn. Oct. 23, 2007)
McClure v. D.R. Horton, Inc., 2008 WL 5449178 (Cal. Super. Ct. S.F. County Aug. 14, 2008)
McGrath v. Poppleton, 550 F. Supp. 2d 564 (D.N.J. 2008)
Monahan v. Lewis, 858 N.Y.S.2d 812 (App. Div. 2008)
Moody Realty Co. v. Huestis, 237 S.W.3d 666 (Tenn. Ct. App. 2007)
Moon v. Wilson, No. 271245, 2007 WL 258411 (Mich. Ct. App. Jan. 30, 2007)
Moser v. Devine Real Estate, Inc., 839 N.Y.S.2d 843 (App. Div. 2007)
Nemeroff v. Coby Group, 864 N.Y.S.2d 25 (App. Div. 2008)
Nitco Holding Corp. v. Boujikian, 491 F.3d 1086 (9th Cir. 2007)
Original Log Homes of Minn. v. Merrill R. Anderson Trust, No. A06-950, 2007 WL 1191700 (Minn. Ct. App. Apr. 24, 2007)
Osta Realty Inc. v. Patel, No. 04-A-15602-6, 2007 WL 925665 (Ga. Super. Ct. DeKalb County Jan. 25, 2007)
Oxford Bus. Brokers, Inc. v. Moriarty, No. 07-ADMS-10061, 2008 WL 4456754 (Mass. App. Div. Sept. 25, 2008)
Pargar, LLC v. Jackson, 670 S.E.2d 547 (Ga. Ct. App. 2008)
Playa Marel v. LKS Acquisitions, Inc., No. C-3-06-366, 2007 WL 3342450 (S.D. Ohio Nov. 6, 2007)
Posson v. Hayes, 829 N.Y.S.2d 286 (App. Div. 2007)
Posson v. Przestrzelski, 870 N.Y.S.2d 147 (App. Div. 2008)
Prime Comm'l, L.L.C. v. Royner, 861 N.Y.S.2d 435 (App. Div. 2008)
Prime Props., Inc. v. Estate of Curry, 2008 WL 5245303 (N.J. Super. Ct. App. Div. Dec. 18, 2008)
Proffitt v. Stichl, No. 02-SV-103, 2007 WL 5247863 (Ga. Super. Ct. Coweta County Oct. 24, 2007)
Realty Ctr. New Homes Div., LLC v. Dowlen Constr., LLC, No. E2008-00137-COA-R3-CV, 2008 WL 5423997 (Tenn. Ct.
App. Dec. 30, 2008)
Ripps v. Powers, No. 07-0832-CG-B, 2008 WL 5428195 (S.D. Ala. Dec.31, 2008)
River City Realtors Inc. v. Mel Foster Co., No. 108694, 2008 WL 4389866 (Iowa Dist Ct. Scott County June 5, 2008)
River Oaks Mgmt. v. Brown, No. 3:06-CV-00451-S, 2007 WL 2571909 (W.D. Ky. Sept. 4, 2007)
Roberts v. Coldwell Banker Kinard Realty, 648 S.E.2d 442 (Ga. Ct. App. 2007)
Rudd v. Mingo Tribal Preservation Trust, No. CV-05-467-E-BLW, 2007 WL 1455878 (D. Idaho Mar. 29, 2007)
Ruske v. Cherrier Realty Corp., No. 08-ADMS-70001, 2008 WL 4200579 (Mass. App. Div. Sept. 8, 2008)
RWSP Realty, LLC v. Agusta, 840 N.Y.S.2d 608 (App. Div. 2007)
Sachs v. Lesser, 163 P.3d 662 (Utah Ct. App. 2007)
Sachs v. Lesser, No. 20070472, 2008 WL 5214373 (Utah Dec. 16, 2008)
Salawitch v. Thalheimer, No. 03Co6006634, 2008 WL 5459450 (Md. Cir. Ct. Baltimore County May 20, 2008)
Salazar v. Interland, Inc., 62 Cal. Rptr. 3d 24 (Ct. App. 2007)
Sammarone v. Bovino, 928 A.2d 140 (N.J. Super. Ct. App. Div. 2007)
Saucier v. Coldwell Banker Joseph M. Endry Realty, 291 Fed. Appx. 674 (5th Cir. 2008)
Scachitti v. DMC Real Estate Dev., Inc., No 6:07-CV-1003-Orl-19DAB, 2008 WL 4853617 (M.D. Fla. Nov. 10, 2008)
Schexnayder v. Gish, 948 So. 2d 1259 (La. Ct. App. 2007)
Schexnayder v. Gish, 980 So. 2d 65 (La. Ct. App. 2008)
App 2-21
Schickedanz Bros.-Riviera Ltd. v. Harris, 996 So. 2d 884 (Fla. Dist. Ct. App. 2008)
Schutter v. Herskowitz, No. 07-3823, 2008 WL 3911050 (E.D. Pa. Aug. 22, 2008)
Schwartz v. Straddella Invs. Inc., 2008 WL 1745573 (Cal. Super. Ct. Feb 28, 2008)
Sclafini Inv. Inc. v. Barton, No. 05-4098-E, 2008 WL 517529 (Tex. Dist. Ct. Dallas County Feb. 1, 2008)
Sellers v. Gomez, No. 08-05-00308-CV, 2008 WL 2966994 (Tex.–App. El Paso July 31, 2008)
Shaffter v. Creative Capital Leasing Group, LLC, 83 Cal. Rptr. 3d 19 (Ct. App. 2008)
Silvio Benedetto Assocs., Inc. v. Porricelli, No. CV075003985S, 2007 WL 2200446 (Conn. Super. Ct. July 2, 2007)
Sold Inc. v. Alvarez, No. 06 M5 183, 2008 WL 5235487 (Ill. Cir. Ct. Cook County Apr. 10, 2008)
Sotheby's Int'l Realty, Inc. v. Black, No. 06 Civ. 1725(GEL), 2007 WL 4436145 (S.D.N.Y. Dec. 17, 2007)
Stepp v. 264 Glenarm, LLC, No. GC035813, 2007 WL 2197681 (Cal. Super. Ct. L.A. County Mar. 19, 2007)
Stocker v. Boatner, No. D1GN07003459, 2008 WL 5638323 (Tex. Dist. Ct. Travis County Dec. 10, 2008)
Striker Inv. Realty v. Martin, 2007 WL 1628089 (N.J. Super. Ct. App. Div. June 7, 2007)
Strum v. Greenville Timberline, LLC, 652 S.E.2d 307 (N.C. Ct. App. 2007)
Tahoe Docks Ltd. v. Carreau, No. CV06-00294, 2008 WL 2447533 (Nev. Dist. Ct. Washoe County Apr. 15, 2008)
Tom Heal Comm’l Real Estate, Inc. v. York, 167 P.3d 523 (Utah Ct. App. 2007)
Tomlinson Black N. Idaho Inc. v. Kirk-Hughes, No. 06-118-N-EJL, 2008 WL 818257 (D. Idaho Mar. 24, 2008)
Tornbeck v. Iannelli, No. CA2006-10-085, 2007 WL 2482670, 2007-Ohio-4539 (Ohio Ct. App. Sept. 4, 2007)
Tosco v. Baldridge Real Estate, Inc., No. 07-324, 2008 WL 2705543 (E.D. Pa. July 10, 2008)
Trezevant Realty Corp. v. Threlkeld, No. W2007-01572-COA-R3-CV, 2008 WL 4613582 (Tenn. Ct. App. Oct. 14, 2008)
Twitchell v. Paris, No. 2:06-0283-KJD-GWF, 2007 WL 2875161 (D. Nev. Sept. 27, 2007)
United Multifamily Corp. v. Mayo Eight, LLC, 72 Mass. App. Ct. 1102, 2008 WL 2338495 (June 10, 2008)
Valdina v. Martin, 849 N.Y.S.2d 365 (App. Div. 2008)
Vision Realty, Inc. v. Kohler, 164 P.3d 330 (Or. Ct. App. 2007)
Ward v. Seibel, No. 1:06-CV-00036, 2007 WL 4811563 (D. Colo. Nov. 2, 2007)
Wayne Boykin & Assocs. v. Tinsley, No. M2006-02467-COA-R3-CV, 2008 WL 820512 (Tenn. Ct. App. Mar. 26, 2008),
cert. denied (Tenn. Oct. 27, 2008)
Weber, Hodges & Godwin Comm’l Real Estate Servs., LLC v. Cook, 650 S.E.2d 834 (N.C. Ct. App. 2007)
West Realty Inc. v. Fox, No. LACV 033178, 2008 WL 3927127 (Iowa Dist. Ct. Dallas County Apr. 30, 2008)
West Shell Comm'l, Inc. v. NWS, LLC, No. CA2006-06-154, 2007 WL 313469, 2007-Ohio-460 (Ohio Ct. App. Feb. 5,
2007)
West v. Club at Spanish Peaks, L.L.C., 186 P.3d 1228 (Mont. 2008)
Whitman Realty Group, Inc. v. Galano, 838 N.Y.S.2d 585 (App. Div. 2007)
Williams v. Pintz, No. CL0700727-00, 2008 WL 5473287 (Va. Cir. Ct. Hanover County Sept. 18, 2008)
Winick Realty Group LLC v. Austin Assocs., 857 N.Y.S.2d 114 (App. Div. 2008)
Wrenn v. Southern States Lexington Corp., Inc., No. 2007-CA-000292-MR, 2008 WL 399632 (Ky. Ct. App. Feb. 15, 2008)
Wyatt v. Cavan Comm'l LLC, No. CV2006-012707, 2008 WL 5505199 (Ariz. Super. Ct. Maricopa County Nov. 14, 2008)
Young v. Wardley Corp., 182 P.3d 412 (Utah Ct. App. 2008)
Zaleski v. North Metro Real Estate, Inc., No. L-000054-05, 2007 WL 1650325 (N.J. Super. Law Div. Sussex County Feb.
2, 2007)
Zoccoli v. DBSI, Inc., No. CV-08-1339-PHX-GMS, 2008 WL 5381579 (D. Ariz. Dec. 23, 2008)
App 2-22
Escrow Mishandling
Boyd v. New Way Props. LLC, No. 53-2007CA-007835-0000-LK, 2008 WL 5521426 (Fla. Cir. Ct. Polk County Oct. 13,
2008)
Broadmoor Ellsworth v. Uhl, No. 06-CV-4519, 2007 WL 2349790 (Colo. Dist. Ct. Denver County Apr. 5, 2007)
Lowenbrau Buttenheim USA v. Rudin, No. A 473304, 2007 WL 5035773 (Nev. Dist. Ct. Dec. 19, 2007)
Frivolous Lawsuits
Commercial Ventures, Inc. v. Rex M. & Lynn Lea Family Trust, 177 P.3d 955 (Idaho 2008)
Grabel v. Ventura, No. E043381, 2008 WL 2690747 (Cal. Ct. App. July 10, 2008)
Hilton & Hyland Real Estate, Inc. v. Loggans, No. B193322, 2008 WL 497165 (Cal. Ct. App. Feb. 26, 2008)
Jones v. Mystic Harbour Corp., No. AMD 08-1047, 2008 WL 5283031 (D. Md. Dec. 17, 2008)
Just Like New Homes, Inc. v. Sun Mgmt., Inc., 2008 WL 299267 (N.J. Super. Ct. App. Div. Feb. 5, 2008)
Lair v. Hendrickson, No. C054514, 2008 WL 2861651 (Cal. Ct. App. July 25, 2008)
Note Purchase Co. of Ga. LLC v. Brenda Lee Strickland Realty, 654 S.E.2d 393 (Ga. Ct. App. 2007)
Sellers v. Gomez, No. 08-05-00308-CV, 2008 WL 2966994 (Tex. App.–El Paso July 31, 2008)
Terra Venture Inc. v. JDN Real Estate-Overland Park, L.P., 242 F.R.D. 600 (D. Kan. 2007)
Lockboxes
California v. Prosser, No. G037953, 2007 WL 4239988 (Cal. Ct. App. Dec. 4, 2007)
Chermak v. Wu, No. 62-C6-06-007631, 2007 WL 1760570 (Minn. Dist. Ct. Ramsey County Jan. 10, 2007)
Affinity Groups
Baird & Warner Residential Sales, Inc. v. Cendant Mobility Servs., Inc., No. 04 C 6788, 2007 WL 4365360 (N.D. Ill. Dec.
13, 2007)
Licensing Issues
Bemenderfer v. Dep't of Bus. & Prof'l Reg., 955 So. 2d 659 (Fla. Dist. Ct. App. 2007)
California v. Prosser, No. G037953, 2007 WL 4239988 (Cal. Ct. App. Dec. 4, 2007)
Clark v. Tyrrell, 750 N.W.2d 364 (Neb. Ct. App. 2008)
Connecticut v. Chapulis, No. CR060121351S, 2007 WL 1828082 (Conn. Super. Ct. June 5, 2007)
Dupont v. N.H. Real Estate Comm'n, 956 A.2d 316 (N.H. 2008)
Farris v. Mississippi Real Estate Comm'n, 994 So. 2d 229 (Miss. Ct. App. 2008), cert. denied (Miss. Nov. 6, 2008)
Garcia v. Dep't of Bus. & Prof'l Reg., 988 So. 2d 1199 (Fla. Dist. Ct. App. 2008)
Gibbons v. Bureau of Prof'l & Occ. Affairs, 921 A.2d 551 (Pa. Commw. Ct. 2007)
Goodson v. Fla. Dep't of Bus. & Prof'l Reg., 978 So. 2d 195 (Fla. Dist. Ct. App. 2008)
Kentucky Real Estate Comm'n v. Hilliard Fin., LLC, 246 S.W.3d 910 (Ky. Ct. App. 2008)
McGregor v. Kansas Real Estate Comm'n, No. 08-2041-JWL, 2008 WL 4540927 (D. Kan. Oct. 8, 2008)
App 2-23
N.J. Real Estate Comm'n v. Nicklus, 2007 WL 4179391 (N.J. Super. Ct. App. Div. Nov. 28, 2007)
Palmer v. Mississsippi Real Estate Comm'n, No. 2007-C01660-COA, 2008 WL 5227217 (Miss. Ct. App. Dec. 16, 2008)
Quilles v. Bender, No. 06 C 4360, 2007 WL 1099477 (N.D. Ill. Apr. 10, 2007)
River Oaks Mgmt. v. Brown, No. 3:06-CV-00451-S, 2007 WL 2571909 (W.D. Ky. Sept. 4, 2007)
Robinson v. N.H. Real Estate Comm'n, 958 A.2d 958 (N.H. 2008)
Romano v. Dep't of Bus. & Prof'l Lic'g, 948 So. 2d 938 (Fla. Dist. Ct. App. 2007)
Schutter v. Herskowitz, No. 07-3823, 2008 WL 3911050 (E.D. Pa. Aug. 22, 2008)
Sherman v. Dari, No. CIV. S-06-1217 GED GGH PS, 2007 WL 3274365 (E.D. Cal. Nov. 5, 2007)
Skynet Corp. v. Slattery, No. 06-CV-218-JM, 2007 WL 817638 (D.N.H. Mar. 13, 2007)
Stroman Realty, Inc. v. Antt, 528 F.3d 382 (5th Cir. 2008)
Stroman Realty, Inc. v. Martinez, 505 F.3d 658 (7th Cir. 2007)
Terway v. Real Estate Agency, 196 P.3d 1022 (Or. Ct. App. 2008)
Transaction Advisory Servs., LLC v. Silver Bar Holding, LLC, 831 N.Y.S.2d 159 (App. Div. 2007)
Breach of Contract
Baird & Warner Residential Sales, Inc. v. Cendant Mobility Servs., Inc., No. 04 C 6788, 2007 WL 4365360 (N.D. Ill. Dec.
13, 2007)
Baker v. Gilhooly, No. CV065003939, 2008 WL 3853436 (Conn. Super. Ct. July 24, 2008)
Bischoff v. Cook, 185 P.3d 902 (Haw. Ct. App. 2008)
Buntz v. Rysdahl, No. 16-CV-06-308, 2008 WL 3863912 (Minn. Dist. Ct. Cook County Feb. 1, 2008)
Clark Lawn Serv. Inc. v. Dick, No. 49D06-0510-PL-040374, 2008 WL 4910659 (Ind. Super. Ct. Marion County July 31,
2008)
Delta Media Group v. Kee Group, Inc., No. 5:07CV01597, 2007 WL 3232432 (N.D. Ohio Oct. 31, 2007)
Dickson v. Hendrickson, No. 05-2-10866-1, 2008 WL 5083169 (Wash. Super. Ct. Pierce County Mar. 10, 2008)
EHM-Meadows LLC v. Conley, No. GIC853810, 2007 WL 3194084 (Cal. Super. Ct. S.D. County March 8, 2007)
Eitel v. Caldwell, No. 2005-03289, 2007 WL 2197736 (Tex. Dist. Ct. Harris County May 22, 2007)
ERA Franchise Sys., Inc. v. Brager & Assoc., Inc., No. 1:06-cv-1861, 2007 WL 2238161 (E.D. Cal. Aug. 2, 2007)
ERA Franchise Sys., Inc. v. Huie, No. CIV S-07-0421, 2008 WL 4754689 (E.D. Cal. Oct. 23, 2008)
ERA Franchise Sys., Inc. v. Rancho Props., Inc., No.1:07cv0485, 2007 WL 2317144 (E.D. Cal. Aug. 7, 2007)
Grindinger v. Kixmiller, No. 2-06-221-CV, 2007 WL 529954 (Tex. App.–Fort Worth Feb. 22, 2007)
Harsch Props., Inc. v. Nicholas, 932 A.2d 1045 (Vt. 2007)
Home Port Developers, Inc. v. Warner, No. E-07-054, 2008 WL 4603277, 2008-Ohio-5389 (Ohio Ct. App. Oct. 17, 2008)
Jack v. Horman, No. A06-362, 2007 WL 47696 (Minn. Ct. App. Jan. 9, 2007)
Mandell v. Murray, No. 53-2006-CA-000337-000-00 (07), 2008 WL 2901899 (Fla. Cir. Ct. Polk County May 2, 2008)
Norman Bobrow & Co. v. Theory, LLC, 857 N.Y.S.2d 541 (App. Div. 2008)
Superior Service v. Buddy Adams & Assocs., No. 03-0899, 2007 WL 4983187 (Ky. Cir. Ct. Warren County Dec. 4, 2007)
Weichert Real Estate Affiliates, Inc. v. Gaston, No. 06-3452, 2007 WL 4590480 (D.N.J. Nov. 8, 2007)
App 2-24
Trademark Issues
Century 21 Real Estate LLC v. Paramount Home Sales, Inc., No. 06-CV-2861, 2007 WL 2403397 (E.D.N.Y. Aug. 20,
2007)
Century 21 Real Estate LLC v. Raritan Bay Realty, Ltd., No. CV-07-1455, 2008 WL 4190955 (E.D.N.Y. Sept. 3, 2008)
Century 21 Real Estate LLC v. Crawford Realty, LLC, No. 07-4126 (SDW), 2008 WL 859530 (D.N.J. Feb. 29, 2008)
ERA Franchise Sys., Inc. v. Stapp, No. CIV S-07-0418 WBS DAD, 2007 WL 4277905 (E.D. Cal. Dec. 4, 2007)
Evans v. Trimont Land Co., No. 06CV00503(WBS), 2007 WL 4322385 (E.D. Cal. Sept. 11, 2007)
HER, Inc. v. RE/MAX First Cherie, LLC, 468 F. Supp. 2d 964 (S.D. Ohio 2007)
Broadmoor Ellsworth v. Uhl, No. 06-CV-4519, 2007 WL 2349790 (Colo. Dist. Ct. Denver County Apr. 5, 2007)
Callicutt v. Prof'l Servs. of Potts Camp, Inc., 974 So. 2d 216 (Miss. 2007)
Crown Enters., Inc. v. Equity Indus. Partners Corp., No. 07-14842, 2008 WL 2324116 (E.D. Mich. May 29, 2008)
Palter v. Blackhawk, No. CGC07465159, 2008 WL 5575053 (Cal. Super. Ct. S.F. County Nov. 14, 2008)
U.S. v. Carpenter, 494 F.3d 13 (1st Cir. 2007)
Miscellaneous
Blyth v. McCrary, 646 S.E.2d 813 (N.C. Ct. App. 2007)
Carter v. IRES Co., No. 06CC12258, 2008 WL 4287130 (Cal. Super. Ct. Orange County Apr. 8, 2008)
Century 21 Maselle & Assocs., Inc. v. Smith, 965 So. 2d 1031 (Miss. 2007)
Clymer v. Pickford Realty, Ltd., No. D051032, 2008 WL 4684812 (Cal. Ct. App. Oct. 24, 2008)
Countrywide Home Loans v. Thitchener, 192 P.3d 243 (Nev. 2008)
Eichelbaum v. Douglas Elliman, LLC, 859 N.Y.S.2d 145 (App. Div. 2008)
Evans v. Singer, 518 F. Supp. 2d 1134 (D. Ariz. 2007)
Field v. Costa, 958 A.2d 1164 (Vt. 2008)
Fradella v. Seaberry, 952 So. 2d 165 (Miss. 2007)
Goodstein Realty Boca Raton v. Gelinas (In re Gelinas), No. 06-1356-BKC-PGU-A, 2007 WL 1184075 (Bankr. S.D. Fla.
Apr. 18, 2007)
Grub & Ellis Co. v. Herzog, No. B197092, 2008 WL 944150 (Cal. Ct. App. Apr. 9, 2008)
Hale v. ReMax Realty, 184 P.3d 858 (Idaho 2008)
Harrington v. Dryer, 937 A.2d 77 (Conn. Super. Ct. 2007)
Home Selling Assistance, Inc. v. Advance Realty, Inc., No. RDB-06-3397, 2008 WL 782473 (D. Md. Mar. 20, 2008)
Igo v. Re/Max Int'l Inc., 83 Pa. D & C 4th 16, 2007 WL 2985289 (Com. Pl. Beaver County July 2, 2007)
Jack v. Horman, No. A06-362, 2007 WL 47696 (Minn. Ct. App. Jan. 9, 2007)
Lawrence v. Palos Verdes Realty, Inc., Nos. B194901, B196773, 2008 WL 3845449 (Cal. Ct. App. Aug. 19, 2008)
Lewton v. Bob Spain Real Estate Servs., Inc., No. 26136-1-III, 2008 WL 934100 (Wash. Ct. App. Apr. 8, 2008)
Mainstreet Org. of Realtors v. Calumet City, 505 F.3d 742 (7th Cir. 2007)
Malad, Inc. v. Miller, 199 P.3d 623 (Ariz. Ct. App. 2008)
Miles v. Bontempo, No. RCVRSO92818, 2008 WL 4210708 (Cal. Super. Ct. San Bernardino County Feb. 14, 2008)
App 2-25
Miller v. Coldwell Baker Hunter Realty, No. CV-06-589925, 2008 WL 52335452 (Ohio Com. Pl. Cuyahoga County Oct. 7,
2008)
Miller v. Lockport Realty Group, Inc., 878 N.E.2d 171 (Ill. App. Ct. 2007)
Moran v. Erk, 872 N.Y.S.2d 696 (2008)
Morf v. N. Cent Miss. Bd. of Realtors, Inc., No. 2007-CA-00839-COA, 2008 WL 2806593 (Miss. Ct. App. July 22, 2008)
Moser v. Devine Real Estate, Inc., 839 N.Y.S.2d 843 (App. Div. 2007)
New York v. Evens, 887 N.Y.S.2d 848 (County Ct. Essex County 2007)
Razink v. Krutzig, 746 N.W.2d 644 (Minn. Ct. App. 2008)
Schutter v. Herskowitz, No. 07-3823, 2008 WL 4822012 (E.D. Pa. Nov. 6, 2008)
Schwalb v. Kulaski, 832 N.Y.S.2d 650 (App. Div. 2007)
Spencer v. Green, 842 N.Y.S.2d 445 (App. Div. 2007)
Twitty v. The Quay Co., No. CA-05-24125, 2007 WL 2301457 (Md. Cir. Ct. Prince George's County)
U.S. v. Fazio, 487 F.3d 646 (8th Cir. 2007)
Udoinyion v. RE/MAX of Atlanta, 657 S.E.2d 644 (Ga. Ct. App. 2008)
Wavestone Props. LLC v. Fortune Dev. Sales Corp., 978 So. 2d 830 (Fla. Dist. Ct. App. 2008)
Whitman Realty Group, Inc. v. Galano, 838 N.Y.S.2d 585 (App. Div. 2007)
Winter Park Real Estate & Inv., Inc. v. Anderson, 160 P.3d 399 (Colo. Ct. App. 2007)
App 2-26
Appendix 3: Statutes and Regulations by Problem Area
Agency: Dual Agency
Ga. Comp. R. & Regs. 520-1-.10 (2007)
Kan. Admin. Regs. § 86-3-26a (2007)
Mont. Admin. R. 24.210.641(2) (2007)
N.H. Code R. Rea 404.04(j)-(l) (2007)
N.H. Code R. Rea. 701.01 (2007)
Or. Admin. R. 863-015-0200 (2008)
Or. Admin. R. 863-015-0205 (2008)
Or. Admin. R. 863-015-0210 (2008)
R.I. Gen. Laws § 5-20.6-2 (2007)
R.I. Gen. Laws § 5-20.6-6 (2007)
Vt. Real Estate Commn R. 4.4 (2008)
128 Nev. Reg. Admin. Regs. reg. no. 165-07, § 3 (Apr. 17, 2008) (not yet codified into N.A.C.
tit. 645)
tit. 645)
tit. 645)
tit. 645)
Ga. Comp. R. & Regs. 520-1-.10 (2007)
Idaho Code § 54-2087 (2007)
Idaho Code § 54-2091 (2007)
Mont. Admin. R. 24.210.641(5)(n) (2008
Mont. Admin. R. 24.210.641(5)(s) (2007)
Mont. Code Ann. § 37-51-313(4) (2007)
N.H. Code R. Rea 703.01 (2007)
Ohio Admin. Code 1301:5-6-09 (2007)
Or. Admin. R. 863-015-0200 (2008)
S.D. Admin. R. 20:69:17:01 Form (2008) (exclusive buyer agency agt.)
S.D. Admin. R. 20:69:17:01 Form (2008) (non exclusive buyer agency agt.)
Tex. Occ. Code § 1303.302 (2007)
App 3-1
Vt. Real Estate Comm'n R. 4.10(a)(8) (2008)
tit. 645)
Del. Code § 297(c)(8) (2008)
Del. Code § 2973(b)(10) (2008)
Kan. Admin. Regs. § 86-3-26a (2007)
N.H. Code R. Rea 404.04(c), (i) (2008)
N.H. Code R. Rea 701.01(h) (2008)
Or. Admin. R. 863-015-0200 (2008)
Or. Admin. R. 863-015-0205 (2008)
Or. Admin. R. 863-015-0210 (2008)
R.I. Gen. Laws § 5-20.6-2 (2007)
R.I. Gen. Laws § 5-20.6-5 (2007)
Agency: Transactional/Non-Agency
Idaho Code § 54-2086 (2007)
N.H. Code R. Rea 701.01(e) (2008)
N.M. Code R. § 16.61.1.7(VV) (2008)
N.M. Code R. § 16.61.19.9 (2008)
Or. Admin. R. 863-015-0200 (2008)
R.I. Gen. Laws § 5-20.6-2 (2007)
R.I. Gen. Laws § 5-20.6-3 (2007)
R.I. Gen. Laws § 5-20.6-4 (2007)
Vt. Real Estate Comm'n R 4.5(f) (2000)
Vt. Real Estate Comm'n R. 4.4 (2008)
Agency: Disclosure of Confidential Information After Termination of
Agency Relationship
Alaska Admin. Code tit. 12, § 64.570 (2008)
Idaho Code § 54-2083 (2008)
Mont. Code Ann. § 37-51-313(11) (2007)
N.H. Code R. Rea 701.01 (2007)
R.I. Gen. Laws § 5-20.6-2 (2007)
App 3-2
N.Y. Real Prop. Law § 443, subd. 4(a) (2007) (2007 N.Y. Sess. L. ch. 549)
18 Va. Admin. Code § 135-20-210 (2008)
21 N.C. Admin. Code 58A.0115 (2007)
Kan. Admin. Regs. § 86-3-19 (2008)
Mont. Admin. R. 24.210.641(2) (2007)
Mont. Admin. R. 24.210.641(5)(s) (2007)
R.I. Gen. Laws § 5-20.6-4 (2007)
Vt. Real Estate Comm'n R 4.5(f) (2000)
Agency: Disclosure of Financial Ability (to purchase or rent)
Mont. Code Ann. § 37-51-313(11) (2007)
24 Del. Admin. Code 2900, reg. 10.3 (2007)
49 Pa. Code § 35.201 (2008)
49 Pa. Code § 35.286 (2007)
49 Pa. Code § 35.336 (2008)
Cal. Bus. & Prof. Code § 10177.6 (2008)
Mich. Comp. Laws § 2517 (2008)
N.H. Code R. Rea 701.01 (2007)
N.H. Code R. Rea 701.01(e) (2008)
N.H. Code R. Rea 701.01(h) (2008)
N.Y. Real Prop. Law § 443, subd. 4(a) (2007) (2007 N.Y. Sess. L. ch. 549)
Ohio Admin. Code 1301:5-5-01 (2008)
Or. Admin. R. 863-015-0200 (2008)
Or. Admin. R. 863-015-0215 (2008)
R.I. Comm'l Lic'g Reg. 11 (2008)
R.I. Gen. Laws § 5-20.6-2 (2007)
R.I. Gen. Laws § 5-20.6-8 (2007)
R.I. Gen. Laws § 5-20.6-9 (2007)
W. Va. Code R. § 174-1-22 (2007)
App 3-3
tit. 645)
tit. 645)
tit. 645)
tit. 645)
tit. 645)
tit. 645)
Idaho Code § 54-2086 (2007)
Mich. Comp. Laws § 2517 (2008)
Mich. Comp. Laws § 339.2501 (2008)
Mich. Comp. Laws § 339.2512d (2008)
Nev. Admin. Code § 645-610 (2008)
R.I. Gen. Laws § 5-20.6-10 (2007)
R.I. Gen. Laws § 5-20.6-2 (2007)
Agency: Other
tit. 645)
tit. 645)
tit. 645)
tit. 645)
21 N.C. Admin. Code 58A.0104 (2007)
21 N.C. Admin. Code 58A.0109 (2008)
299 Neb. Admin. Code § 5-003-18 (2007)
Cal. Code Regs. tit. 10, § 2840 (2008)
Cal. Code Regs. tit. 10, § 2842 (2008)
Cal. Code Regs. tit. 10, § 2844 (2008)
Colo. Rev. Stat § 12-61-912 (2007) (2007 Sess. L. ch. 386)
Del. Code § 2972(d) (2008)
Del. Code § 2972(f) (2008)
Del. Code § 2977(d) (2008)
App 3-4
Del. Code § 2978(b) (2008)
Idaho Code § 54-2083 (2007)
Idaho Code § 54-2087 (2007)
Idaho Code § 54-2091 (2007)
Mont. Admin. R. 24.210.301 (2007)
Mont. Admin. R. 24.210.641(5)(l) (2007)
Mont. Admin. R. 24.210.641(5)(p) (2007)
Mont. Admin. R. 24-210-301(7), (22) (2008)
Mont. Admin. R. 24-210-641(5)(m) (2007)
N.H. Code R. Rea 101.01(b), (d) (2007)
N.H. Code R. Rea 703.01 (2007)
N.M. Code R § 16.61.16.9(H) (2008)
N.M. Code R § 16.61.17.9 (2008)
N.Y. Real Prop. Law § 443, subd. 1(k)-(o) (2007) (2007 N.Y. Sess. L. ch. 549)
Nev. Admin. Code § 645.911 (2008)
Nev. Rev. Stat. § 645.0045 (2007)
Nev. Rev. Stat. § 645.254, subd. 4 (2007)
Nev. Rev. Stat. § 645.255 (2007)
Ohio Admin. Code 1301:5-6-09 (2007)
Or. Admin. R. 863-014-000 to -015-250 (2008)
Or. Admin. R. 863-015-003 (2008)
Or. Admin. R. 863-015-0130 (2008)
Or. Admin. R. 863-015-0135 (2008)
Or. Admin. R. 863-015-0145 (2008)
R.I. Gen. Laws § 5-20.6-1 (2007)
R.I. Gen. Laws § 5-20.6-11 (2007)
R.I. Gen. Laws § 5-20.6-3 (2007)
R.I. Gen. Laws § 5-20.6-7 (2007)
Vt. Real Estate Comm'n R. 4.11(e) (2008)
Vt. Real Estate Comm'n R. 4.9(a)(9) (2008)
Wash. Rev. Code §§ 18.85.010(2), (16) (2008)
Property Condition Disclosure: Sewer/Septic
R.I. Gen. Laws § 5-20.8-13 (2007)
App 3-5
R.I. Gen. Laws § 5-20.8-2 (2007)
R.I. Gen. Laws § 5-20.8-2 (2008)
S.D. Codified Laws § 43-4-44 (2007)
Tenn. Comp. R. & Regs. 1260-2-.37 (2008)
Property Condition Disclosure: Lead-based Paint
Vt. Stat. Ann. tit. 18, § 1767 (2008)
Property Condition Disclosure: Valuation
Vt. Real Estate Comm'n R. 4.5(a) (2008)
Property Condition Disclosure: Boundaries
Wash. Rev. Code § 64.06.020 (2007)
Wyo. Stat. § 34-1-151 (2007)
Property Condition Disclosure: Zoning
Cal. Code Regs. tit. 10, § 2790.8 (2008)
Va. Code § 54.1-2131(B) (2008)
Property Condition Disclosure: Off-site Adverse Conditions
Ariz. Rev. Stat. § 33-422 (2008)
Cal. Bus. & Prof. Code § 11010 (2008)
Cal. Bus. & Prof. Code § 1103.4 (2008)
Conn. Gen. Stat. § 20-327g (2007)
Minn. Stat. § 513.56, subd. 3 (2007)
Minn. Stat. § 8.222, subd. 8 (2007)
R.I. Gen. Laws § 5-20.8-2 (2008)
Va. Admin. Code tit. 135, Form (2007)
Va. Code § 54.1-2131(B) (2008)
Property Condition Disclosure: Meth Labs
Ark. Code § 8-7-1406 (2007)
La. Rev. Stat. §§ 9:3198(B), :3198.1 (2008)
Tex. Prop. Code § 5.008(b) (2007)
Property Condition Disclosure: Underground Storage Tanks
Wash. Rev. Code § 64.06.010 (2007)
App 3-6
Property Condition Disclosure: Electromagnetic Fields
Wash. Rev. Code § 64.06.020 (2007)
Property Condition Disclosure: Pollution/Environmental Other
Ariz. Rev. Stat. § 33-423 (2007)
Colo. Rev. Stat. § 38-35.7-104 (2007)
Kan. Stat. Ann. § 66-1228 (2007)
Md. Code Ann., Real Prop. § 10-702 (2007)
Md. Code Ann., Real Prop. § 10-705 (2007)
Okla. Admin. Code tit. 605, ch. 10, Appx. A (2008)
Wash. Rev. Code § 64.06.010 (2007)
Wash. Rev. Code § 64.06.020 (2007)
Property Condition Disclosure: Other
21 N.C. Admin. Code 58A.0114 (2007)
Ariz. Rev. Stat. § 33-423 (2007)
Cal. Code Regs. tit. 10, § 2790.9 (2008)
Fla. Stat. § 718.616 (2007)
Iowa Code § 558A.4 (2008)
Kan. Stat. Ann. § 79-1437f (2007)
Nev. Rev. Stat. § 645.252, subd. 49(c) (2007)
Ohio Admin. Code 1301.5-6-10 (2008)
S.D. Admin. R. 20:69 PCD Statement (2008)
Tex. Prop. Code § 5.016 (2007)
Va. Code § 54.1-2131(B) (2008)
Wash. Rev. Code § 64.06.005 (2007)
Wash. Rev. Code § 64.06.015 (2007)
Wash. Rev. Code § 64.06.020 (2007)
Wyo. Stat. § 34-1-151 (2007)
18 Va. Admin. Code § 135-50-220 (2007)
815 Ill. Comp. Stat. 120/3 (2008)
N.C. Gen. Stat. § 160A-499.2 (2007)
18 Va. Admin. Code § 135-50-220 (2007)
App 3-7
815 Ill. Comp. Stat. 120/3 (2008)
N.C. Gen. Stat. § 160A-499.2 (2007)
Fair Housing: National Origin Discrimination
18 Va. Admin. Code § 135-50-220 (2007)
815 Ill. Comp. Stat. 120/3 (2008)
N.C. Gen. Stat. § 160A-499.2 (2007)
18 Va. Admin. Code § 135-50-220 (2007)
N.C. Gen. Stat. § 160A-499.2 (2007)
Fair Housing: Familial Status Discrimination
18 Va. Admin. Code § 135-50-220 (2007)
N.C. Gen. Stat. § 160A-499.2 (2007)
18 Va. Admin. Code § 135-50-220 (2007)
815 Ill. Comp. Stat. 120/3 (2008)
Me. Rev. Stat. tit. 5, §§ 4553-A, § 4554, sub-§ 4 (2007)
N.C. Gen. Stat. § 160A-499.2 (2007)
N.Y. Exec. Law § 292, subds. 31, 32, 33 (2007)
Or. Rev. Stat. § 659A.145 (2008)
Utah Code Ann. § 62A-5b-102 (2007)
Utah Code Ann. § 62A-5b-104 (2007)
Wash. Rev. Code § 46.16.381 (2007)
Wash. Rev. Code § 46.60.040 (2007)
Fair Housing: Sexual Orientation Discrimination
Colo. Rev. Stat. § 24-34-301(7) (2008)
Colo. Rev. Stat. § 24-34-501(3), (4) (2008)
Colo. Rev. Stat. § 24-34-502 (2008)
Colo. Rev. Stat. Ann. § 24-34-601(2) (2008)
Colo. Rev. Stat. Ann. § 24-34-602 (2008)
Colo. Rev. Stat. Ann. § 24-34-701 (2008)
Iowa Code § 216.10 (2007)
Iowa Code § 216.10(4) (2007)
App 3-8
Iowa Code § 216.2(9A), (12A) (2007)
Iowa Code § 216.8 (2007)
Iowa Code § 216.8A(1), (2) (2007)
Iowa Code § 216.8A(5) (2007)
Iowa Code § 216.A (2007)
Or. Rev. Stat. § 659A.421 (2008)
Wash. Rev. Code §§ 36.130.005–.020 (2008)
Fair Housing: Advertising and Target Marketing
Colo. Rev. Stat. Ann. § 24-34-601(2) (2008)
Colo. Rev. Stat. Ann. § 24-34-701 (2008)
Iowa Code § 216.8 (2007)
Fair Housing: Other
18 Va. Admin. Code § 135-50-220 (2007)
2008 Or. Laws ch. 36 (not yet codified in tit. 659A)
21 N.C. Admin. Code 58A.0104 (2007)
775 Ill. Comp. Stat. 5/3-106 (2007)
Colo. Rev. Stat. Ann. § 24-34-602 (2008)
D.C. Code § 2-1411.02 (2008)
Iowa Code § 216.10 (2007)
Iowa Code § 216.10(4) (2007)
Iowa Code § 216.15 (2008)
Iowa Code § 216.2(9A), (12A) (2007)
Iowa Code § 216.8 (2007)
Iowa Code § 216.8A(1), (2) (2007)
Iowa Code § 216.8A(5) (2007)
Iowa Code § 216.A (2007)
Me. Rev. Stat. tit. 5, § 4583 (2007)
Me. Rev. Stat. tit. 5, § 4612, sub-§1 (2007)
N.D. Cent. Code § 14-02.5-13 (2007)
Ohio Admin. Code 1301:5-5-01 (2008)
Or. Rev. Stat. § 659.820 (2008)
Or. Rev. Stat. § 659.825 (2008)
App 3-9
Or. Rev. Stat. § 659.830 (2008)
Or. Rev. Stat. § 659.850 (2008)
Or. Rev. Stat. § 659A.840 (2008)
Or. Rev. Stat. § 659A.845 (2008)
Or. Rev. Stat. § 659A.885(9) (2008)
Vt. Stat. Ann. tit. 1, § tit. 1, §144 (2007)
Vt. Stat. Ann. tit. 8, § 10403 (2007)
Vt. Stat. Ann. tit. 9, § 4503(a) (2007)
Wash Rev. Code §§ 49.60.010–.040, .175, .176, .222–.225 (2007)
Technology: State Internet Advertising Rules
18 Va. Admin. Code § 135-20-190 (2008)
21 N.C. Admin. Code 58A.0105 (2007)
Okla. Admin. Code § 605:10-9-4(b) (2007)
Or. Admin. R. 863-015-1235(9) (2008)
W. Va. Code R. § 174-1-9 (2007)
Technology: Privacy
2008 Conn. Acts ch. 167 (not yet codified)
Iowa Code §§ 715C.1, .2 (2008)
Md. Code Ann., Com. Law §§ 14-3501 to -3508 (2007)
N.Y. Gen. Bus. Law § 399-z, subd. 3 (2007)
Okla. Stat. tit. 24, §§ 161–166 (2008)
Va. Code § 18.2-186.6 (2008)
W. Va. Code §§ 46A-2A-101 to -105 (2007)
Cal. Bus. & Prof. Code § 17514 (2008)
Cal. Bus. & Prof. Code § 17592 (2008)
Ky. Rev. Stat. § 367.46951 (2007)
Me. Rev. Stat. tit. 10, § 1499-B (2007)
Me. Rev. Stat. tit. 10, § 1499-B, sub-§§ 1, 2, 6 (2008)
N.D. Cent. Code § 51-28-01 (2007)
N.Y. Gen. Bus. Law § 396-aa (2008)
Tex. Bus. & Com. Code § 44.002(9) (2007)
App 3-10
Fla. Stat. § 494.0038 (2007)
Utah Admin. Code R162-6.1.10.2 (2007)
Wyo. Stat. § 40-23-113 (2008)
RESPA: Kickbacks
Fla. Stat. § 494.0038 (2007)
RESPA: Affiliated Business Arrangements
La. Rev. Stat. § 6:1090 (2007)
Cal. Bus. & Prof. Code § 11323 (2007)
Cal. Bus. & Prof. Code § 17514 (2008)
Kan. Stat. Ann. §50-6, 113 (2008)
Wash. Rev. Code § 18-280-030 (2008)
Sign Ordinances
Ala. Code § 34-27-30.2 (2008)
Ariz. Rev. Stat. § 33-1261 (2007)
Ariz. Rev. Stat. § 33-1261 (2008)
Ariz. Rev. Stat. § 33-1808 (2007)
Ariz. Rev. Stat. § 33-1808 (2008)
Fla. Stat. § 720.304 (2008)
N.D. Cent. Code § 47-04.1 (2007)
18 Va. Admin. Code § 135-20-280 (2008)
4 Colo. Code Regs. § 725-1, r. E-48 (2008)
Ark. Code § 17-42-103(10) (2007)
Idaho Code § 54-2089 (2007)
Ky. Rev. Stat. § 224.01-410 (2008)
Ky. Rev. Stat. § 224.99-010(15) (2008)
Ky. Rev. Stat. § 324.020 (2008)
Ky. Rev. Stat. § 324.235–.238 (2008)
Mont. Admin. R. 24.210.641(5)(z) (2008)
App 3-11
N.H. Code R. Rea 101.01(f), (g) (2007)
Or. Admin. R. 863-015-0188 (2008)
Wash. Rev. Code § 18.85.100 (2008)
Miscellaneous
201 Ky. Admin. Regs. § 11:121 (2008)
21 N.C. Admin. Code 58A.0109 (2008)
Alaska Admin. Code tit. 12, § 64.570 (2008)
Alaska Stat. § 08.88.685(a) (2007)
Ariz. Rev. Stat. § 12-1361 (2008)
Ariz. Rev. Stat. § 13-2322 (2008)
Ark. Code § 17-14-104(a)(1) (2007)
Ark. Code § 27-24-1408 (2007)
Ark. Real Estate Reg. 10.12(b) (2007)
Cal. Bus. & Prof. Code § 10140.6 (2008)
D.C. Mun. Regs. tit. 17, §§ 2609.4, .5, .6 (2008)
Ill. Admin. Code tit. 68, § 1450.140 (2008)
Iowa Code § 543B.60A.8, .9 (2007)
Kan. Admin. Regs. § 86-3-30 (2008)
Kan. Admin. Regs. § 86-3-9 (2007)
La. Admin. Code tit. 46, § 3900 (2007)
Mo. Code Regs. Ann. tit. 20, § 2250-8.090(9), (10) (2008)
N.D. Admin. Code 70-02-03-02 (2008)
N.D. Admin. Code 70-02-03-10 (2008)
N.H. Code R. Rea 101.01(h), (i) (2007)
N.H. Code R. Rea 404.03 (2008)
N.H. Code R. Rea 404.05 (2008)
Ohio Admin. Code 1301:5-1-02 (2007)
Or. Admin. R. 863-015-0125(11) (2008)
Or. Admin. R. 863-015-0190 (2008)
Pa. Cons. Stat. tit. 63, § 457.6 (2008)
Tenn. Code Ann. § 62-13-302(b) (2007)
Vt. Stat. Ann. tit. 18, § 2882(b) (2008)
Wyo. Stat. § 33-28-401 (2007)
App 3-12
Appendix 4: RESEARCH METHOD
The National Association of REALTORS® (NAR) is the nation's largest
trade association, representing over 1.3 million individual members. Founded in
1909, NAR remains dedicated to its original goals: the creation of unity in the
real estate profession, the compilation of relevant information concerning real
estate, the protection and promotion of private ownership of property, and the
establishment of professional standards of practice.
To further those goals, in 1996 the Legal Affairs Department initiated a
research effort that resulted in a Legal Scan (1997 Scan) of the real-estate
industry. The Scan did not involve an analysis of the law on any given issue;
rather, it sought to determine the frequency with which certain legal issues arose,
changes in that frequency, and indications that new issues were arising. The
Scan has been updated every two years since then. This report, the 2009 Scan,
presents the latest data.
To a great extent, the methodology used in the previous Scans was
followed for the 2009 Scan. The specific issues are organized by their Major
Topic areas.
(See Table 1.)
Real Estate Management issues are treated
separately in another study. For specific descriptions of the individual issues,
see Appendix Exhibit 1.
The research had two components. First, as in previous years, surveys
were used to collect data from a variety of people in the real estate industry ("Key
Contacts"). ARELLO assisted in surveying the state real estate commissions on
App 4-1
a limited set of issues. Second, traditional legal research was used to locate
relevant cases, statutes and regulations. 1 The data were recorded in a database
substantially similar to the one used in previous years.
TABLE 1
MAJOR TOPIC AREAS AND THEIR ISSUES
Major Topic Area
Issues Included
Agency
Dual Agency, Buyer Representation, Designated
Agency, Transactional/Nonagency, Subagency,
Disclosure of Confidential Information After Termination
of the Agency Relationship, Vicarious Liability, Breach
of Fiduciary Duty, Disclosure of Financial Ability (to
Purchase or Rent), Agency Disclosure, Minimum
Service Agreements, Other
Property Condition
Disclosure
Structural Defects, Sewer/Septic, Radon, Asbestos,
Lead-based Paint, Mold, Roof, Synthetic Stucco,
Flooring/Walls, Plumbing, HVAC, Electrical System,
Valuation, Insects/Vermin, Boundaries, Zoning, Off-site
Adverse Conditions, Meth Labs, Stigmatized Property,
Megan's Laws, Underground Storage Tanks, Electromagnetic Fields, Pollution/Environmental, Other
Employment
†
Harassment, Age Discrimination, Sex Discrimination,
Race Discrimination, National Origin Discrimination,
Sexual Orientation Discrimination, Wrongful
Termination, Defamation, Personal Assistants,
Independent Contractors, Workers' Compensation,
Other
Fair Housing
Sex Discrimination, Race Discrimination, National
Origin Discrimination, Religious Discrimination, Familial
Status Discrimination, Handicap Discrimination, Sexual
Orientation Discrimination, Source of Income
Discrimination, Advertising and Target Marketing, Other
Americans with
†
Disabilities Act
Employment, Accessibility
1
Statutes and Regulations were not collected for several of the Issues. They are
marked in Table 1 with a dagger (†).
App 4-2
Major Topic Area
Issues Included
Technology
State Internet Advertising Rules, Privacy, Antisolicitation Laws, Other
Antitrust
Price-fixing, Group Boycotts, Advertising, Tying
Agreements, Other
RESPA
Disclosure of Settlement Costs, Kickbacks, Affiliated
Business Arrangements, Other
Appraisers, Inspectors, Other
†
Ethics
Reliance on NAR's Code of Ethics by Courts,
Enforcement of NAR's Code of Ethics
Miscellaneous
Sign Ordinances; Deceptive Trade Practices
†
†
†
Act/Fraud ; "Flipping" ; "As-Is" Clauses ; Commission
†
Disputes/Procuring Cause; Escrow ; Frivolous
†
†
†
Lawsuits ; Lockboxes ; Relocation Companies ; Affinity
†
†
†
Groups ; Licensing ; Breach of Contract ; Uninsurable
†
†
Homes/Failure to Close ; Trademark Issues ; Section
†
1031 Exchanges ; Miscellaneous
Survey of State Real Estate Commissions
Although state commissions have been a valuable resource for historical
data in previous Scans, the number of states responding to the surveys and the
completeness of the responses declined for each successive Scan.
This
component of the research was dropped in 2005. Since then, however, ARELLO
has collected relevant data for NAR in one of its surveys. The commissions were
given a list of issues and were asked to name the three issues that most often
formed the basis of disputes involving real estate licensees over the last two
years and today, and the three issues that they thought would form the basis of
disputes most often in the next two years.
Twenty-six states answered the
App 4-3
questions; their answers are summarized in Appendix 1, Table 10.
Survey of Key Contacts
For the 2009 Scan, a survey was e-mailed to 1197 selected individuals in
the real estate industry ("Key Contacts") throughout the United States, including
agents and brokers, members of NAR's Risk Management Committee and
Professional Standards Committee, and attorneys who represent REALTOR®
boards, as well as large firm brokers, real estate educators, and members of the
advisory group of the Real Estate Buyer's Agent Council.
The survey is
substantially similar to the one used in the four previous Scans. (See Appendix
Exhibit 2.)
Seventeen percent (205) of the Key Contacts who received the
survey responded; 148 people (12%) answered each question.
The survey's questions yielded information about the extent to which each
issue forms the basis for current disputes and the probable change, if any, in the
level of disputes on each issue over the next two years. The term "disputes" was
broadly defined to encompass litigation, complaints to state real estate
commissions, arbitration and mediation actions, and the respondents' own
impressions. The respondents also were asked whether there was a need for
training on the various issues.
The analysis is based on the actual responses to each question; nonresponses were not included in the statistical calculations. Where relevant, the
actual number of respondents is noted.
To provide for consistent analysis and comparison, the responses to the
questions on (1) the present or future level of significance and (2) the change, if
App 4-4
any, in the level of significance over a given time period were interpreted and
recorded as one of five standard responses.
Each response received a
corresponding numerical value from one to five. (See Tables 2 and 3.) The
numerical values were used to calculate the average response or rank ("Avg")
and the standard deviation ("StDev"). 5
TABLE 2
NUMERICAL VALUES FOR LEVELS OF SIGNIFICANCE
Response
Value
Low
1
Low-Medium
2
Medium
3
Medium-High
4
High
5
TABLE 3
NUMERICAL VALUES FOR CHANGES
IN LEVEL OF SIGNIFICANCE
Response
Value
Decrease Significantly
1
Decrease Somewhat
2
Remain the Same
3
Increase Somewhat
4
Increase Significantly
5
5
The population standard deviation was used in these calculations.
Standard deviation is a measure of the variation among the individual responses.
A small standard deviation indicates the responses are grouped closely around
the average response, meaning the respondents are in closer agreement with
each other than they are when the standard deviation is higher.
App 4-5
Questions for which no response was given were not included in the
calculation of the average response/rank, standard deviation from the average,
or the percentage of respondents providing each answer.
Traditional Legal Research
In addition to the information collected from the surveys, cases decided in
2007 and 2008 were reviewed, along with legislative and regulatory activity for
the same period. This review provided legal information about current trends in
the law, as well as comparative or substantiating information on issues and
trends identified through the surveys. It also provided "hard" data, rather than
the more subjective information collected from the Key Contacts.
To streamline the research somewhat, only cases were retrieved and
categorized for certain issues. Thus, no statutes or regulations were retrieved for
issues relating to Employment and the Americans with Disabilities Act. Research
for several issues that did not fit within a Major Topic Area also focused only on
case law. Those issues are: Deceptive Trade Practices Act/Fraud, "Flipping,"
"As-Is" Clauses, Escrow Mishandling, Frivolous Lawsuits, Lockboxes, the two
Ethics issues (Reliance on NAR's Code of Ethics by Courts and Enforcement of
NAR's Code of Ethics), Relocation Companies, Affinity Groups, Licensing Issues,
Professional Liability, Breach of Contract, Uninsurable Homes/Failure to Close,
Trademark Issues, and Section 1031 Exchanges.
App 4-6
Case law searches
Queries were run in the multi-state database of real property cases (MRPCS) and a federal case-law database (ALLFEDS) using Westlaw®, a
computerized legal research service. The searches were restricted to retrieve
only cases decided from January 1, 2007, to December 31, 2008. Cases that
were irrelevant or arose in an irrelevant context (e.g., divorce or lien-foreclosure
proceedings) were purged. The relevant cases were categorized by Major Topic
and Issue, as set forth in Table 1. In the end, information for 608 cases 2 was
entered into the database.
Similar electronic research was conducted in West's comprehensive jury
verdicts and settlements database (JV-ALL).
Unlike the traditional case-law
databases on Westlaw®, the verdict and settlement database is compiled in part
based on voluntary submissions by the attorneys involved in these unreported
cases. Approximately 196 jury-verdict reports were retrieved.
Statutory and regulatory searches
Session laws for all fifty states and the District of Columbia were reviewed
over the Internet.
To locate federal statutes, specifically Fair Housing and
RESPA, searches were performed in Westlaw® databases containing Public
Laws (PL and PL-OLD), with date restrictors on the search. Regulations were
identified by running searches in Thomson West’s REGTRK on-line database,
2
While 608 cases were categorized (including jury verdict and settlement
reports retrieved from JV-ALL), many cases fit in more than one category. The
number of data "units" used in the statistical calculations therefore exceeds the
number of cases.
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which follows federal and state regulatory activity. The REGTRK results were
then used to locate new and amended regulations in print, on Westlaw®, or on
the Internet. Approximately 260 3 statutory amendments, new statutes and new
regulations addressing real-estate issues were retrieved and reviewed.
Technical amendments were not counted.
The legal-research data were entered into the NAR Legal Scan database
according to the following fields of information: Major Topic and Issue, Source of
the Information (Cases, Statutes/Regulations, Jury Verdicts) and "Unit" (the legal
citation). After the data were entered into the database, the computer program
created summary reports, sorting the data by region or issue.
3
Here, too, the number of statues and regulations is lower than the count
of data "units" that will be used in the statistical analysis, because many statutes
and regulations fit in more than one category.
App 4-8
Exhibit A
Descriptions of Issues for the 2009 Legal Scan
Issue 1: Agency: Dual Agency
Dual agency can arise in several situations, such as when an individual real estate
licensee represents both the seller and the buyer in a transaction. The primary
implication of a dual agency situation is that the fiduciary duty of loyalty to a client is
limited. Dual agency also can arise when one sales associate affiliated with a real
estate brokerage represents the seller and another sales associate affiliated with the
same brokerage represents the buyer in a given transaction. This is because all
licensees affiliated with a broker are agents of the broker, and therefore, all would
represent both the seller and the buyer. Some states have addressed this by enacting
legislation providing for "designated agency" (other terms also are used), which in some
cases allows this sort of in-company representation without creating dual agency.
Undisclosed dual agency always is illegal. Disclosed dual agency, where the buyer and
seller give their informed consent, is legal in most states. In the mid- to late -1990s there
was a great deal of state legislation addressing dual agency. All cases involving dual
agency would be of interest.
Issue 2: Agency: Buyer Representation
Buyer representation, while practiced in commercial real estate for a long time, is
relatively new to the residential area. Historically, in residential transactions, all of the
licensees involved represented the property seller and thus owed fiduciary duties to the
seller. The 1990s saw a dramatic increase in the frequency of buyer representation,
with many more licensees offering buyer representation and more and more buyers
seeking out their services.
Some state laws create a presumption of buyer
representation in the absence of an agreement stating otherwise. All cases examining
licensees' relationships with consumers as buyer representatives would be of interest,
especially any that examine the differences between buyer representation and seller
representation.
Issue 3: Agency: Designated Agency
A number of states have enacted legislation providing for designated agency. The
terminology used by the states for this practice varies, and includes such terms as
"designated representation" and "appointed agency." Under this practice, the broker
designates a licensee affiliated with his firm to represent the buyer and designates
another licensee affiliated with the firm to represent the seller, without creating a dual
agency situation. Under designated agency, the only licensee who represents the
consumer is the individual licensee who has been designated to represent that person;
unlike tradition agency relationships, the other licensees affiliated with the brokerage do
not represent the consumer. The licensee who has been designated to represent a
consumer can give the client full representation, as opposed to a dual agency
relationship, in which the licensees only owe the consumers limited fiduciary duties. In
addition, in some states, the legislation specifies that in designated agency situations,
the broker also is not a dual agent. All cases involving this practice would be of interest.
App 4-9
Issue 4: Agency: Transactional Agency: Non-Agency
Since the mid -1990s, a number of states have adopted legislation providing for a new
type of brokerage relationship between a real estate licensee and a consumer, which
often is characterized as a non-agency relationship. The states use different terms to
describe this type of relationship, including "transaction broker" and "facilitator." In most
cases, in this type of relationship, the licensee owes less than all of the traditional
fiduciary duties to the consumer, and acts more as a "middleman." Any cases involving
these relationships would be of interest, especially any that might examine whether the
transaction broker really was acting as an agent under the theory of implied agency.
Also of great interest would be any cases exploring a state law's abrogation of the
common law of agency.
Issue 5: Agency: Subagency
Subagency, which for many years was very popular in the real estate industry, is no
longer commonly used and, in fact, is unlawful in some states. Subagency usually
occurs when a broker accepts an offer of subagency through a multiple listing service.
That broker and all the licensees in his or her firm owe fiduciary duties to the listing
broker and the principal (the seller), both of whom may be liable for the wrongful acts of
the subagent.
Issue 6: Agency: Disclosure of Confidential Information After Termination of Agency
Relationship
The issue here is the real estate licensee's duty of confidentiality to a client extending
beyond the termination of the agency relationship with the client. The duty of
confidentiality is one of the fiduciary duties owed by an agent to its principal. An
example of this situation would be where a real estate licensee was the listing broker for
a particular piece of property which did not sell during the term of the listing and the
owner listed the property with another broker. The original listing broker now represents
a buyer client who is interested in that property. The broker is privy to confidential
information about the seller from previously having been the listing broker. An example
of such information would be that the sellers are getting divorced and are desperate to
"unload" the property as soon as possible. This information obviously would be of value
to the broker's new buyer client, and obviously its disclosure would be to the detriment of
the seller. The issue is whether the duty of confidentiality extends beyond the
termination of the broker's agency relationship with the seller, preventing him from
disclosing this confidential information to his buyer client. Certain state statutes
specifically state that the duty of confidentiality extends beyond the termination of the
agency relationship.
Issue 7: Agency: Vicarious Liability
"Vicarious liability" means the legal liability of a principal for misrepresentations made by
the principal's agent or subagent to the other party to the transaction. In a real estate
transaction, if the principal is the seller, such a misrepresentation would be something
regarding the home or the seller. For example, if the agent or subagent misrepresented
the condition of the roof to the buyer, under the theory of vicarious liability, the seller
could be liable for that misrepresentation. If the principal is the buyer, such
misrepresentation would be something regarding the buyer. For example, if the agent or
App 4-10
subagent misrepresented the buyer’s financial qualifications to the seller, under the
theory of vicarious liability, the buyer could be liable for that misrepresentation.
Issue 8: Agency: Breach of Fiduciary Duty
Fiduciary duties flow from agency relationships (i.e., an agent owes fiduciary duties to
his principal). A real estate licensee who has formed an agency relationship with a
buyer/tenant or seller/landlord owes that buyer/tenant or seller/landlord fiduciary duties.
Fiduciary duties are not owed to buyers or sellers with whom the licensee has not
established an agency relationship. Traditional fiduciary duties include: 1) loyalty;
2) obedience; 3) disclosure; 4) confidentiality confidentiality; 5) reasonable care and
diligence; and 6) accounting. This category should include cases involving alleged
breaches of fiduciary duties by real estate licensees functioning as agents of
buyers/tenants or sellers/landlords.
Issue 9: Agency: Disclosure of Financial Ability (to Purchase or Rent)
This issue raises the liability of a real estate professional for failing to provide accurate
and complete information to a seller or tenant as to whether a prospective buyer or
tenant has the financial ability to purchase or lease a subject property.
Issue 10: Agency: Agency Disclosure
This issue addresses the disclosures a real estate licensee must make to clients about
the kinds of relationships licensees may have with clients, defining those relationships
and the duties they involve.
Issue 11: Agency: Minimum Service Agreements
This issue addresses the practice, sometimes required under state law, of setting forth in
writing the precise services a real estate licensee will provide.
Issue 12: Agency: Other
Historically, the brokerage relationship between the real estate licensee (broker or sales
associate) and the consumer has been governed by state common law of agency. In an
agency relationship, the licensee owes the traditional fiduciary duties to the client:
loyalty, obedience, disclosure, confidentiality, reasonable care and diligence and
accounting. In recent years, most states have adopted legislation that specifies the
duties and responsibilities of real estate licensees to consumers; some of this legislation
abrogates the state common law, while some does not. In most cases, the legislation
basically codifies the state's common law of agency, with some slight modifications.
Agency cases usually involve a claim of breach of fiduciary duty.
Issue 13: Property Condition Disclosure: Structural Defects
The issue raised by Structural Defects is the liability of a real estate professional for
failing to discover and/or disclose any structural defects (such as foundation and framing
problems) of a residential or commercial building being offered for sale or rental. Such
liability might arise under a common law or state statutory or regulatory obligation to
disclose adverse property features, or structural defects specifically.
App 4-11
Issue 14: Property Condition Disclosure: Sewer/Septic
The issue raised by Sewer/Septic is the liability of a real estate professional for failing to
discover and/or disclose defects in the sewer/septic system of a residential or
commercial building being offered for sale or rental. Such liability might arise under a
common law or state statutory or regulatory obligation to disclose adverse property
features, or sewer/septic system defects specifically.
Issue 15: Property Condition Disclosure: Radon
The issue raised by Radon is the liability of a real estate professional for failing to
discover and/or disclose the actual or potential presence of elevated levels of radon in a
residential or commercial building being offered for sale or rental. Such liability might
arise under a common law or state statutory or regulatory obligation to disclose adverse
property features, or the presence of radon or radon levels specifically.
Issue 16: Property Condition Disclosure: Asbestos
The issue raised by Asbestos is the liability of a real estate professional for failing to
discover and/or disclose the actual or potential presence of asbestos containing
materials (ACM) in a residential or commercial building being offered for sale or rental.
Such liability might arise under a common law or state statutory or regulatory obligation
to disclose adverse property features, or ACM specifically.
Issue 17: Property Condition Disclosure: Lead-based Paint
The issue raised by lead-based paint is the liability of a real estate professional to
discover and disclose the presence of lead-based paint in a residential property being
offered for sale or rental. Such liability might arise under a common law or state
statutory or regulatory obligation to disclose adverse property features, or lead-based
paint specifically, or as a result of the obligations imposed on real estate agents under
the Federal regulations requiring disclosure of lead-based paint, lead-based paint
hazards and lead-based paint information.
Issue 18: Property Condition Disclosure: Mold
The issue raised by Mold is the liability of a real estate professional for failing to discover
and/or disclose signs, in a residential or commercial building being offered for sale or
rental, that the property may have mold that could cause or has caused illness to
persons or damage to property. Such signs are usually related to prior water problems
on the property that were not properly corrected. This is a hot topic for which there
remain many unknowns, including what type and what levels of mold may be toxic.
Issue 19: Property Condition Disclosure: Roof
The issue raised by Roof is the liability of a real estate professional for failing to discover
and/or disclose the presence of defects in the roof of a residential or commercial building
being offered for sale or rental. Such liability might arise under a common law or state
statutory or regulatory obligation to disclose adverse property features, or roof defects
specifically.
App 4-12
Issue 20: Property Condition Disclosure: Synthetic Stucco
The issue raised by Synthetic Stucco is the liability of a real estate professional for failing
to discover and/or disclose the actual or potential presence of synthetic stucco products
(also known as artificial stucco and "exterior insulation and finish systems," or "EIFS")
used and present in or on a residential or commercial building being offered for sale or
rental, or problems or defects arising from the use of such products. Such liability might
property features, or the presence of synthetic stucco specifically.
Issue 21: Property Condition Disclosure: Flooring/Walls
The issue raised by Flooring/Walls is the liability of a real estate professional for failing to
discover and/or disclose the actual or potential presence of flooring/wall defects affecting
a residential or commercial building being offered for sale or rental. Such liability might
property features, or flooring/wall defects specifically.
Issue 22: Property Condition Disclosure: Plumbing
The issue raised by Plumbing is the liability of a real estate professional for failing to
discover and/or disclose the actual or potential presence of plumbing defects in or
affecting a residential or commercial building being offered for sale or rental. Such
liability might arise under a common law or state statutory or regulatory obligation, to
disclose adverse property features or plumbing defects specifically.
Issue 23: Property Condition Disclosure: HVAC System
The issue raised by HVAC is the liability of a real estate professional for failing to
discover and/or disclose the actual or potential presence of HVAC defects in a
residential or commercial building being offered for sale or rental. Such liability might
property features, or HVAC defects specifically.
Issue 24: Property Condition Disclosure: Electrical System
The issue raised by Electrical System is the liability of a real estate professional for
failing to discover and/or disclose the actual or potential presence of electrical system
defects in a residential or commercial building being offered for sale or rental. Such
liability might arise under a common law or state statutory or regulatory obligation to
disclose adverse property features, or electrical system defects specifically.
Issue 25: Property Condition Disclosure: Valuation
The issue raised by Valuation is the liability of a real estate professional for failing to
provide a correct valuation of a residential or commercial building being offered for sale
or rental, or for otherwise failing correctly to advise a party about the valuation of a
property. Such liability might arise under a common law or state statutory or regulatory
obligation to disclose adverse property features, or property valuation issues or
information specifically.
App 4-13
Issue 26: Property Condition Disclosure: Insects/Vermin
The issue raised by Insects/Vermin is the liability of a real estate professional for failing
to discover and/or disclose the actual or potential presence of insects/vermin (such as
termites) on or affecting a residential or commercial building being offered for sale or
rental. Such liability might arise under a common law or state statutory or regulatory
obligation to disclose adverse property features, or to disclose information about the
presence of insects/vermin specifically.
Issue 27: Property Condition Disclosure: Boundaries
The issue raised by Boundaries is the liability of a real estate professional for failing to
discover and/or disclose the actual boundaries of a residential or commercial building
being offered for sale or rental, or to recommend that a buyer/renter have a survey
performed to correctly ascertain the boundaries. Such liability might arise under a
features, or to disclose information about the boundaries of the property specifically.
Issue 28: Property Condition Disclosure: Zoning
The issue raised by Zoning is the liability of a real estate professional for failing to
provide accurate and complete information concerning zoning of a residential or
commercial building being offered for sale or rental. Such liability might arise under a
features, or to disclose the information about the zoning of the property specifically.
Issue 29: Property Condition Disclosure: Off-site Adverse Conditions
The issue raised by Off-site Hazards is the liability of a real estate professional for failing
to discover and/or disclose the presence of off-site adverse conditions, that is, hazards
not physically present on or otherwise within the physical boundaries of the property
being offered for sale or rental but which may nevertheless affect the property or
persons on it. Such liability might arise under a common law or state statutory or
regulatory obligation to disclose adverse property features, or off-site hazards
specifically.
Issue 30: Property Condition Disclosure: Meth Labs
The issue raised by Meth Labs in the liability of a real estate professional for failing to
discover and/or disclose the fact that the property had been used for the production of
methamphetamine. It covers both the environmental impact of the production, such as
dumping reagents, and the stigma that may attach to the property as a result of what
occurred there.
Issue 31: Property Condition Disclosure: Stigmatized Property
The issue raised by stigmatized property is the liability of a real estate licensee to
discover and/or disclose non-physical defects in a property, such as an earlier murder,
rape or other crime on the property, suicide on the property, a rumor of ghosts on the
property, or the fact that the prior tenant or owner was infected with the HIV virus. Such
App 4-14
liability, or exemption from liability, might arise under common law or a state statute that
specifies whether such non-physical defects constitute a material fact that must be
disclosed to potential buyers or tenants.
Issue 32: Property Condition Disclosure: Megan's Laws
The issue raised by Megan's Laws is the liability of a real estate licensee to discover
and/or disclose information to a potential buyer or tenant regarding the nearby
whereabouts of a released sex offender. The federal Megan's Law (an amendment to
the Violent Crime Control and Law Enforcement Act of 1994) requires states to enact
their own laws mandating that released sex offenders register with local law enforcement
agencies and that information on their whereabouts be made available to the public.
Since most state statutes do not expressly exempt real estate professionals from
discovering and disclosing this information, real estate licensees face a number of
ambiguities with regard to any disclosure responsibilities they might have: (i) do real
estate licensees have a duty to disclose—or to do more than provide prospective buyers
with the telephone numbers of law enforcement agencies keeping such information; (ii)
what geographic proximity triggers a real estate licensee's duty to disclose; (iii) the
complexity of information that needs to be conveyed if the state uses a tier system
based on degree of risk of the released offender; (iv) how often records need to be
checked; (v) the effect of this information on property values; and (vi)
defamation defamation concerns.
Issue 33: Property Condition Disclosure: Underground Storage Tanks
The issue raised by Underground Storage Tanks is the liability of a real estate
professional for failing to discover and/or disclose the presence of one or more
underground storage tanks on a residential or commercial property being offered for sale
or rental, or to discover and/or disclose contamination of the property as a result of
leakage from a tank. Such liability might arise under a common law or state statutory or
regulatory obligation to disclose adverse property features, or underground storage
tanks specifically.
Issue 34: Property Condition Disclosure: Electromagnetic Fields
The issue raised by Electromagnetic Fields is the liability of a real estate professional for
failing to discover and/or disclose the presence of electromagnetic fields or one or more
sources of electromagnetic fields (such as electric power distribution or transmission
lines) that may affect a residential or commercial property being offered for sale or
rental. Such liability might arise under a common law or state statutory or regulatory
obligation to disclose adverse property features, or electromagnetic fields specifically.
Issue 35: Property Condition Disclosure: Pollution/Environmental Other
The issue raised by Pollution/Environmental Other is the liability of a real estate
professional for failing to discover and/or disclose the actual or potential presence of, or
the nature or potential sources of, pollution or other undesirable environmental
conditions that are or may be present on a residential or commercial property being
offered for sale or rental. Such liability might arise under a common law or state
statutory or regulatory obligation to disclose such pollution or other adverse
App 4-15
environmental property features generally, or specified pollution or other adverse
environmental property features or conditions specifically.
Issue 36: Property Condition Disclosure: Other
The issue raised by Property Condition Disclosure: Other is the liability of a real estate
professional for failing to discover and/or disclose the presence of other adverse
conditions on or features of a property being offered for sale or rental. Such liability
might arise under a common law or state statutory or regulatory obligation to disclose
adverse property features, or other specified features or conditions specifically.
Issue 37: Employment: Harassment
The issue raised by Harassment is the liability of a real estate broker/owner when one of
his or her employees or independent contractors is harassed by: (1) another employee
or independent contractor; (2) by his or her supervising manager; or (3) by a potential
home buyer or home seller. Such liability would arise under a state or federal antidiscrimination law such as Title VII.
Issue 38: Employment: Age Discrimination
The issue raised by Age Discrimination is the liability of a real estate broker/owner under
the ADEA or similar state laws, for discriminating against employees or independent
contractors on the basis of age.
Issue 39: Employment: Sex Discrimination
The issue raised by Sex Discrimination is the liability of a real estate broker/owner under
Title VII or similar state laws, for discriminating against employees or independent
contractors on the basis of sex.
Issue 40: Employment: Race Discrimination
The issue raised by Race Discrimination is the liability of a real estate broker/owner
under Title VII, other federal civil rights laws or similar state laws, for discriminating
against employees or independent contractors on the basis of race.
Issue 41: Employment: National Origin Discrimination
The issue raised by National Origin Discrimination is the liability of a real estate broker
under Title VII or similar state laws, for discriminating against employees or independent
contractors on the basis of national origin.
Issue 42: Employment: Sexual Orientation Discrimination
The issue raised by Sexual Orientation Discrimination occurs only under some state and
local employment laws and addresses the liability of a real estate broker/owner for
discriminating against employees or independent contractors on the basis of sexual
orientation.
App 4-16
Issue 43: Employment: Wrongful Termination
The issue raised by Wrongful Termination is the liability of a real estate broker/owner for
the termination of an employee or sales associate based on a violation of public policy or
an express or implied contractual agreement between them, irrespective of any
allegation of race, sex, age, disability or national origin discrimination.
Issue 44: Employment: Defamation
Defamation occurs when a broker/owner is alleged to have published, to a third party,
false and derogatory information about an employee. This is often alleged to have
occurred via references or other discussions about an employee upon the employee's
voluntary or involuntary termination.
Issue 45: Employment: Personal Assistants
The issue of Personal Assistants arises when a real estate broker or sales associate
hires an assistant, either licensed or unlicensed, to assist in the salesperson's or
broker's work. Some of the issues that arise in this category involve: (1) whether state
law requires that the personal assistant be licensed; (2) what kinds of duties an
unlicensed personal assistant may perform; (3) whether or not the personal assistant is
an employee or independent contractor; and (4) what is the liability of the supervising
broker or agent for his or her personal assistant's negligence or misconduct.
Issue 46: Employment: Independent Contractors
The issue of Independent Contractors involves the determination as to whether a sales
associate is an employee or an independent contractor and the impact of this
determination on: (1) tax or benefits consequences, and (2) broker liability for the sales
associate's misconduct.
Issue 47: Employment: Workers' Compensation
The issue of Workers' Compensation involves the determination as to whether state
workers' compensation laws apply to real estate licensees who are independent
contractors.
Issue 48: Employment Other
This sub-issue covers all other employment-related issues involving real estate brokers,
franchisers, sales associates, and support staff.
Issue 49: Fair Housing: Sex Discrimination
The issue raised by Sex Discrimination under the Fair Housing Laws is the liability of a
real estate licensee, seller, landlord or lender, for discriminating in the sale or rental of
property on the basis of sex. Such liability can arise under the Federal Fair Housing Act
and its amendments or under the state's fair housing laws. This liability may occur when
equal services of a real estate licensee are not provided because of sex, when an
individual is discriminated against in the purchase or lease of property because of his or
her sex, or discriminatory refusal to lend because of sex. In addition, cases in which a
App 4-17
real estate professional is alleged to have sexually harassed a potential buyer or seller
would fall under this issue.
Issue 50: Fair Housing: Race Discrimination
The issue raised by Race Discrimination under the Fair Housing laws is the liability of a
real estate licensee, seller, landlord or lender, for discriminating in the sale or rental of
property on the basis of race. Such liability can arise under the Federal Fair Housing Act
and its amendments, under other federal civil rights laws or under the state's fair housing
laws. This liability occurs when equal services of a real estate licensee are not provided
because of race, when an individual is discriminated against in the purchase or lease of
property because of his or her race, or by steering, blockbusting or discriminatory refusal
to lend because of race.
Issue 51: Fair Housing: National Origin Discrimination
The issue raised by National Origin Discrimination is the liability of a real estate licensee,
seller, landlord or lender, for discriminating in the sale of rental of property on the basis
of national origin. Such liability can arise under the federal Fair Housing Act and its
amendments, other federal civil-rights laws, or state fair housing laws.
Issue 52: Fair Housing: Religious Discrimination
The issue raised by Religious Discrimination is the liability of a real estate licensee,
seller, landlord or lender, for discriminating in the sale of rental of property on the basis
of religion. Such liability can arise under the federal Fair Housing Act and its
amendments, other federal civil-rights laws, or state fair housing laws.
Issue 53: Fair Housing: Familial Status Discrimination
This issue is similar to the others above and arises, in most instances, when families
with children are denied access to housing or otherwise discriminated against vis- -vis
building rules or the use of property amenities.
Issue 54: Fair Housing: Handicap Discrimination
The issue raised by Handicap Discrimination under the Fair Housing laws is the liability
of builders, landlords and sellers for discriminating against individuals with physical or
mental disabilities in the sale or rental of property or in failing to provide reasonable
accommodations on the property for the disabled.
New building construction
requirements under fair housing laws have also been established and provide that new
construction must be wheelchair accessible. There is currently controversy as to
whether these requirements apply not only to builders, but also to subsequent and
innocent owners. Issues involving zoning for group homes often fall under this category
as well.
App 4-18
Issue 55: Fair Housing: Sexual Orientation Discrimination
The issue raised by Sexual Orientation Discrimination occurs only under some state and
local fair housing laws and addresses the liability of a real estate licensee, seller,
landlord or lender, for discriminating in the sale or rental of property on the basis of
sexual orientation.
Issue 56: Fair Housing: Source of Income Discrimination
The issue raised by Source of Income Discrimination occurs only under some state fair
housing laws and addresses the liability of a real estate licensee, seller, landlord, or
lender for discriminating in the sale or rental of property on the basis of source of
income.
Issue 57: Fair Housing: Advertising and Target Marketing
Advertising and Target Marketing issues arise under federal and state fair housing laws
when a landlord, seller, real estate licensee or publisher expresses, directly or indirectly,
a preference for (or bias against) individuals of certain sexes, races, familial status,
religions, national origins or physical or mental capacities. Liability may arise from the
language used in advertising or even from pictures that are not inclusive of all races,
sexes, ages and physical abilities.
Issue 58: Fair Housing: Other
All other issues involving federal and state fair housing laws should be considered here.
Issue 59: Americans With Disabilities Act: Employment
ADA issues arise when employees are or become disabled. The current ADA issues are
(1) whether whether an employee is disabled, and (2) whether the employer must make
some reasonable accommodation for a disabled employee. ADA issues also may arise
in the hiring context.
Issue 60: Americans with Disabilities Act: Accessibility
ADA issues arise when places of public accommodation, like a broker's office, are not
accessible to the disabled. ADA issues also arise when educational courses offered by
brokers or associations do not provide reasonable accommodations such as special
devices and other assistance for the hearing and sight-impaired.
Issue 61: Technology: State Internet Advertising Rules
What are the requirements of the different rules being adopted by the various states to
specifically address advertising by real estate agents over the Internet? Do these rules
apply to the advertising of properties for sale or lease or just to the offering of real estate
services (is there a difference)? What is the scope of the real estate commissions'
authority in the individual states to regulate the offering of services by out-of-state
practitioners to individual consumers in the forum state via the Internet?
App 4-19
Issue 62: Technology: Privacy
The increased popularity and use of e-mail and the Internet to conduct business brings
with it the need to protect consumers' private information. Other advances in technology
also have made private information more accessible and information itself has become a
commodity in trade. The issues raised, therefore, are the duties of Real Estate
Professionals to protect their customers' private information and the liability they may
face under the common law of privacy or specific statutes or regulations for breaches of
consumer privacy.
Issue 63: Technology: Anti-solicitation Laws
The use of e-mail, the Internet, and various telemarketing techniques also brings with it
the need to protect consumers' right to be free from unwanted solicitations, and state
and federal governments have adopted laws and regulations to protect this aspect of
consumer privacy.
Issue 64: Technology: Other
The increased concentration of information used in other issues involving technology
and the real estate business raises issues regarding its protection and authority required
to use that information. The use of some technologies such as e-mail and computerized
forms to facilitate the completion of a real estate transaction may also raise issues
related to confidentiality of client communications, the adequacy of a writing to meet the
statute of frauds, or unauthorized copying of materials such as contract forms.
Issue 65: Antitrust: Price Fixing
The issue raised by Price Fixing is the liability under federal or state antitrust laws of real
estate professionals or firms, or real estate associations, for explicitly or tacitly agreeing
to charge customers the same prices (such as listing commissions, commission splits, or
other fees), or the factual circumstances which establish, or allow the finder of fact to
conclude, that an unlawful price -fixing agreement exists.
Issue 66: Antitrust: Group Boycotts
The issue raised by Group Boycotts is the liability under federal or state antitrust laws of
real estate professionals or firms, or real estate associations, for engaging in conduct
deemed to be an unlawful agreement to boycott one or more competitors or firms, or the
factual circumstances which will establish, or allow the finder of fact to conclude, that an
unlawful boycott exists.
Issue 67: Antitrust: Advertising
The issue raised by Advertising is whether various advertising practices of real estate
professionals or firms, or real estate associations, violate federal or state antitrust laws.
Advertising practices that might be challenged under the antitrust laws may include, for
example, agreements among real estate professionals or firms to jointly publish certain
advertising, the creation and distribution of an advertising publication by a real estate
association, agreements among real estate professionals or firms to refrain from certain
kinds of advertising, or from advertising in certain places or at certain times, or other
App 4-20
practices. Cases which address the factual circumstances which will demonstrate or
allow the finder of fact to conclude that there exists an unlawful agreement regarding
advertising practices, are also of interest.
Issue 68: Antitrust: Tying Agreements
The issue raised by Antitrust: Tying Agreements is the liability under federal or state
antitrust laws of real estate professionals or firms, or real estate associations, for
engaging in conduct deemed to be an unlawful tying agreement. Cases which address
the factual circumstances under which a finder of fact may conclude that there exists an
unlawful tying agreement involving such parties are also of interest.
Issue 69: Antitrust: Other
The issue raised by Antitrust: Other is the liability under federal or state antitrust laws of
real estate professionals or firms, or real estate associations, for engaging in other
business practices. Such cases might include those addressing explicit or tacit
agreements among competitors regarding business practices other than pricing or
advertising, cases challenging the practice of limiting access to the MLS or other
association services to association members, or those practices which address the
factual circumstances which will establish, or allow the finder of fact to conclude, that
there exists an unlawful agreement regarding allegedly anti-competitive practices at
issue. Such cases might also address the question of the conduct of a real estate trade
association which is sufficient to hold it liable because of its indirect involvement with the
anti-competitive activities of real estate professionals or firms.
Issue 70: RESPA: Disclosure of Settlement Costs
A disclosure of settlement costs is made twice during a real estate transaction. The first
is the good-faith estimate of closing costs which must be provided to the consumer. The
second is the HUD 1 form which must be completed for the closing. The issues raised
by both of these requirements are who is responsible for the disclosure, during what time
frame is the delivery of these forms acceptable, and how accurate must the information
on the forms be to be acceptable when delivered and must the good-faith estimate be
updated. Finally, if there is a dispute, does the consumer have a right of action against
the party responsible for making the disclosure?
Issue 71: RESPA: Kickbacks
Under RESPA all kickbacks (also known as "referral fees") paid between settlement
service providers are illegal. Two issues are raised by this prohibition. Can parties other
than those identified in the definition of settlement services found in the Act (12 U.S.C.
§ 2602(3)) be considered settlement service providers and what constitutes a kickback
(or referral fee) as opposed to a legitimate payment for some good or service actually
rendered?
Issue 72: RESPA: Affiliated Business Arrangements
Known earlier as Controlled Business Arrangements, they involve a special exception to
the prohibition on payments between settlement service providers that applies when two
App 4-21
settlement service providers with a degree of common ownership make payments
between themselves, provided the payments are related to the ownership interest and
not based upon the number or frequency of referrals between the two companies. The
issues raised by this arrangement are what is required to be an affiliated business and
what types of payments can be categorized as a return on an ownership interest made
between the two affiliated businesses?
Issue 73: RESPA: Other
RESPA matters usually involve the payment of some thing of value between two or more
settlement service providers. While referrals are prohibited the statute allows for the
payment of reasonable compensation for goods and services actually provided. Issues
which are raised by this may involve joint marketing efforts or shared facilities and
allocating the cost of the joint marketing or facilities among different settlement service
providers.
Issue 74: Third Party Liability: Appraisers
The issue here is the liability of a real estate appraiser to a party with whom the
appraiser is not in privity if the appraisal of the value of the property is not accurate.
Lenders almost always hire an appraiser to appraise a property in connection with the
mortgage loan they are making to the purchaser. In such a scenario, since the appraiser
is working for the lender, and not directly for the purchaser, whether the appraiser would
have any liability to the purchaser would be the issue. (Sometimes, however,
purchasers or sellers independently hire an appraiser on their own.)
Issue 75: Third Party Liability: Inspectors
This topic is meant to encompass situations where a party who has not contracted with
the home inspector files suit or makes a complaint against the home inspector. Since
home inspectors are most often hired by buyers, the seller or the seller's broker will
usually be the third-party complainant—as complainant—as opposed to situations
encompassed by "Third-Party Liability: Appraisers," where the buyer will often be the
third-party complainant.
Issue 76: Third Party Liability: Other
The issue here would be the liability of other third parties, for example, title insurers,
surveyors, contractors, or the like to people with whom they did not contract with directly.
Issue 77: Code of Ethics: Reliance On NAR's Code of Ethics by Courts
This issue arises when real estate professionals, regardless of whether they are
members of NAR or not, are sued for misconduct and when the court that is hearing the
suit uses various articles and standards of practice under NAR's Code of Ethics to make
or justify its decision.
App 4-22
Issue 78: Code of Ethics: Enforcement of NAR's Code of Ethics
This issue arises when a member of NAR challenges the disciplinary action of a
REALTOR® board or grievance committee against that member for violating the Code of
Ethics. This issue also arises when Boards themselves seek declaratory judgments in
anticipation of disciplining a member.
Issue 79: Sign Ordinances
May a town or a private entity dictate whether a resident may display a sign or the
American flag? May the town or private entity restrict what a sign says? To what extent
does a resident's right of free speech trump those restrictions?
Issue 80: Deceptive Trade Practices Act and Fraud
Liability resulting from false, misleading or deceptive statements or actions arising under
common law fraud or statutory provisions of a state Deceptive Trade Practices Act
(sometimes otherwise known as Unfair Trade Practices Act, or Unfair Competition Act).
Some of the issues are how each element of such a claim has been interpreted in the
context of a real estate transaction, particularly whether the act or statement made by
the agent must be known to be false, how the reliance of the injured party upon the act
or statement is shown or negated and whether the existence or absence of an agency
relationship alters any of the results. Special issues related to the statutory provisions
include (a) whether a state Deceptive Trade Practices Act applies to real estate
professionals or real estate sales; (b) what what type of practices or conduct of real
estate professionals is deemed a violation of the Act; (c) whether attorney's fees may be
recovered by a successful plaintiff in an action brought under the Act; and (d) whether
and under what circumstances may punitive or other non-compensatory damages be
awarded to a successful plaintiff.
Issue 81: "Flipping"
"Flipping" refers to the predatory-lending practice of reselling a recently acquired
property for considerable profit with an artificially inflated value (often with collusion
between the lender, the appraiser and others, including real estate licensees). Cases
addressing flipping may be criminal in nature, involving such charges as mail fraud, wire
fraud or conspiracy, or they may seek civil damages.
Issue 82: "As Is" Clauses
The issue raised by "As Is" clauses is whether a real estate licensee or seller who sells a
property "as is" can still be liable for failing to disclose certain property conditions.
Generally speaking, "as is" clauses only provide relief from failure to disclose liability
when a material defect is easily discoverable or apparent to a potential buyer. Issues
involving "as-is" clauses are often addressed by or related to state property condition
disclosure laws.
App 4-23
Issue 83: Commission Disputes/Procuring Cause
Procuring cause is the legal standard for determining who is entitled to a commission on
a real estate transaction. Real estate licensees are held to be the procuring cause of a
sale or rental when it is their unbroken efforts that have resulted in the buyer's ultimate
decision to buy or lease the property on terms acceptable to the seller or lessor. There
are many factors, no one of which is dispositive, that go into the determination of who is
the procuring cause in a particular transaction. Procuring cause cases are found in both
residential and commercial transactions. However, since NAR requires its members to
agree to binding arbitration when procuring cause is disputed, a great deal of the case
law involves commercial transactions. Most recently, the issue of buyer representation
and how it relates, if at all, to the determination of procuring cause has been examined.
Other issues regarding commission disputes often involve the doctrine of quantum
meruit.
Issue 84: Escrow Mishandling
The licensing laws and regulations that govern the conduct of real estate licensees
include the duties of licensees to create and manage escrow accounts (also known as
trust accounts). These accounts are used to deposit funds from buyers or sellers such
as earnest money deposits, rents, security deposits and money advanced by a buyer or
seller for the payment of expenses in connection with the closing of real estate
transactions. This category should include cases in which the broker is alleged to have
violated the law governing the establishment and use of these accounts.
Issue 85: Frivolous Lawsuits
While most jurisdictions have rules which require a good-faith investigation of the facts
and the law underlying any lawsuit filed with the courts, the defense of frivolous lawsuits
remains a significant expense for many brokers. The issue is whether there is any
means of shifting the cost of defending frivolous lawsuits to the plaintiff under current or
proposed laws or rules.
Issue 86: Lockboxes
Lockboxes are often used on properties to provide convenient access to the property for
cooperating agents wishing to show the property. They are secure boxes which contain
a key or other means of accessing the property. The issue raised by their use is what
type of disclosure regarding their risk is required of the broker and if an unauthorized
third party gains access to the property using the lockbox, what is the liability of the
agent for damages.
Issue 87: Relocation Companies
Relocation companies enter into agreements with large corporations whereby they
handle aspects of the relocation of corporate employees, including the sale of the home
in the prior location and the purchase of the home in the new location. In turn, the
relocation company often enters into agreements with local real estate brokers to handle
the actual transaction. Although there are many variations, typically, the broker is
required to pay a referral fee to the relocation company for each transaction. Sometimes
the relocation company actually owns the relocating employee's home for a while before
App 4-24
it is sold, but it appears that more often, the relocation company does not ever own the
property.
One issue that arises is whether a state requires that a relocation company be licensed
in that state in order to pursue its relocation activities there. While some affinity partners
and relocation companies hold real estate licenses, it appears that many do not. Some
state real estate commissions have adopted rules or policies addressing some of these
issues, and at least one requires that a relocation company be licensed in the state prior
to conducting its activities there.
Other issues include "after-the-fact commissions"; "double referral fees"; and payments
to non-licensed individuals. These issues can arise when a licensee is working with a
relocating client, unaware that a relocation company is involved. This can happen on
either side of the transaction. After doing considerable work for the client, they discover
the relocation company involvement. Problems can arise because often the practitioner
first learns of the relocation company's involvement when the client is informed by his
employer that he will not receive all of his relocation benefits unless he uses an affiliated
real estate brokerage, and the relocation company asks the broker to pay it a referral
fee. Often by the time this is discovered, the transaction has progressed to the point that
it is unfair to characterize this as a true referral fee. Even more issues arise when the
transaction already has closed, commissions and other referral fees already have been
paid, and the broker is asked by the relocation company to pay it a referral fee on top of
all of the other payments which have been made. In some programs, the relocation
company pays its corporate client (the employer) a portion of the referral fee it receives
from the brokers. Sometimes the corporation in turn pays its relocating employee a
portion of the amount as a relocation "bonus." So, if the licensee refuses to pay the fee
to the relocation company, then his client may not receive all of his relocation benefits.
Issue 88: Affinity Groups
Partnerships between large membership organizations called affinity groups and real
estate firms are increasing. Many kinds of affinity programs are offered by a wide range
of organizations (such as AARP, and Amerinet, with its Costco program—a large
warehouse club). These programs involve negotiated arrangements between the affinity
group and real estate brokerages, where the affinity partner markets the services of its
affiliate firms to its members and the brokerage discounts its commission to those
members. Sometimes the affinity group receives a percentage of the brokerage
commission received on each referral, and the consumer then receives a rebate,
discount or other incentive from the affinity group for using the services of a participating
firm. At least one large brokerage has a partnership with a major airline; the brokerage
buys frequent-flyer miles from the airline and then gives them directly to its clients who
participate in the program. The issue here is whether such incentives constitute unlawful
payments of commission to unlicensed individuals.
Issue 89: Licensing Issues
These issues include state licensing reciprocity (other than instances involving relocation
companies), disciplinary action taken against a licensee by a state real estate
commission and determinations as to whether certain conduct requires a real estate
license. With regard to reciprocity, state licensing laws differ. Some prohibit sharing a
real estate commission with someone who is not licensed in that jurisdiction, although
often there is an exemption for a referral fee paid to one who is licensed in another
App 4-25
jurisdiction. Some allow sharing a commission with a nonresident broker who is licensed
in another jurisdiction if the foreign broker has a cooperative working agreement with a
broker licensed in that state.
Issue 91: Breach of Contract
A contract is breached whenever a party to a contract fails to keep a promise in the
agreement without a legal excuse. A breach can occur when a party makes a direct
refusal to perform a promise in the agreement, or when a party fails to fully complete
promises made in the agreement. Because virtually every step of the real estate
process involves a contract, there are many opportunities for a breach of contract action
to arise.
Common real estate contracts include a listing agreement, buyer
representation agreement, a sales contract, an option contract, etc. A failure to fully
satisfy the promises made in any of those agreements could result in a lawsuit for
breach of contract. Our interest is in those breach of contract cases where a real estate
professional is either the plaintiff or defendant.
Issue 92: Uninsurable Homes/Failure to Close
The problem of uninsurable homes arises when a buyer cannot get affordable casualty
insurance for a home because, for example, past casualty-loss claims have created a
stigma on the property, or the insurer has felt the squeeze of a large number of claims in
that geographical area due to a natural disaster. The buyer may be priced out of
coverage or coverage may simply be unavailable. Although the problem usually merely
delays the transaction, in some situations it may actually cause the transaction to fall
through.
Issue 93: Trademark Issues
When a large real estate broker has a dispute with a local office, the continued use of
trademarks, logos and similar intellectual property may be an additional area of litigation.
Issue 94: Section 1031 Exchanges
Section 1031 Exchanges allow sellers of real property to delay capital-gains taxes by
reinvesting the proceeds of the sale in another property (a “like-kind exchange”). A
recent development in this area is investing in property held as a tenancy in common
(“TIC”), such as a resort property. This issue examines how § 1031 Exchanges work
and the role of real estate professionals in advising clients about the § 1031 exchange
and TIC investments. It does not cover income-tax issues.
Issue 95: Miscellaneous
App 4-26
Exhibit 2
Survey Form
App 4-27
Below is a list of issues that may form the basis for disputes (claims/complaints/lawsuits) involving real estate agents and/or brokers.
Based on your knowledge and experience in the real estate industry, please choose the appropriate response regarding the
frequency with which you believe the issue is currently a basis for disputes.
Agency-Related Issues
low
low-med
med
med-high
high
low
low-med
med
med-high
high
low
low-med
med
med-high
high
Dual agency
Buyer representation
Designated agency
Transactional/Non-Agency
Subagency
Disclosure of confidential information after termination of
agency relationship
Vicarious liability
Breach of fiduciary duty
Disclosure of financial ability (to purchase or rent)
Agency disclosure
Minimum service agreements
Property Condition Disclosure-Related Issues
Structural defects
Sewer/Septic
Mold/Water Intrusion
Roof
Meth Labs
Valuation
Employment-Related Issues
Harassment
Discrimination (age sex, race, national origin, sexual
orientation)
Wrongful termination
Defamation
Personal assistants
App. 4-28
Independent contractors
Workers' compensation
Fair Housing-Related Issues
low
low-med
med
med-high
high
low
low-med
med
med-high
high
low
low-med
med
med-high
high
low
low-med
med
med-high
high
low
low-med
med
med-high
high
Sex discrimination
Race discrimination
National origin discrimination
Religious discrimination
Familial status discrimination
Handicap discrimination
Sexual orientation discrimination
Source of income
Advertising and target marketing
Employment by broker or agent
Accessibility of broker's premises
Technology-Related Issues
State Internet advertising rules
Privacy
Anti-solicitation laws
Antitrust-Related Issues
Price-fixing
Boycotts
Advertising
Tying agreements
RESPA-Related Issues
Disclosure of settlement costs
Kickbacks
Affiliated business arrangements
App. 4-29
Third Party-Related Issues
low
low-med
med
med-high
high
low
low-med
med
med-high
high
Appraisers
Inspectors
Miscellaneous Issues
Reliance on NAR's Code of Ethics by Courts
Sign ordinances
Deceptive Trade Practices Act/Fraud
"Flipping"
"As-Is" clauses
Commission disputes / procuring cause
Escrow
Frivolous lawsuits
Lock boxes
Licensing of relocation companies
Relationships between affinity groups and real estate
brokerages
Licensing issues
(e.g., foreign brokers, interstate reciprocity, discipline, conduct
requiring a license, but not continuing education)
Breach of contract in which agent or broker is a party
Uninsurable homes/Failure to close
Trademark Issues
Based on your knowledge and experience in the real estate industry, please choose the appropriate response regarding the extent to
which you believe the number of disputes based on the issue will change in the next two years.
decrease
significantly
decrease
somewhat
neither
increase nor
decrease
increase
somewhat
increase
significantly
Dual agency
Designated agency
App. 4-30
Subagency
agency relationship
Vicarious liability
Agency disclosure
decrease
significantly
decrease
somewhat
neither
increase nor
decrease
increase
somewhat
increase
significantly
decrease
significantly
decrease
somewhat
neither
increase nor
decrease
increase
somewhat
increase
significantly
decrease
significantly
decrease
somewhat
neither
increase nor
decrease
increase
somewhat
increase
significantly
Structural defects
Sewer/Septic
Roof
Meth Labs
Valuation
Harassment
orientation)
Defamation
Personal assistants
Sex discrimination
Race discrimination
App. 4-31
Source of income
decrease
significantly
decrease
somewhat
neither
increase nor
decrease
increase
somewhat
increase
significantly
decrease
significantly
decrease
somewhat
neither
increase nor
decrease
increase
somewhat
increase
significantly
decrease
significantly
decrease
somewhat
neither
increase nor
decrease
increase
somewhat
increase
significantly
decrease
significantly
decrease
somewhat
neither
increase nor
decrease
increase
somewhat
increase
significantly
decrease
significantly
decrease
somewhat
neither
increase nor
decrease
increase
somewhat
increase
significantly
Privacy
Price-fixing
Boycotts
Advertising
Tying agreements
Kickbacks
App. 4-32
Appraisers
Inspectors
decrease
significantly
decrease
somewhat
neither
increase nor
decrease
increase
somewhat
increase
significantly
Sign ordinances
"Flipping"
"As-Is" clauses
Escrow
Frivolous lawsuits
Lock boxes
brokerages
Licensing issues
Trademark Issues
Based on your knowledge and experience in the real estate industry, please choose the appropriate response regarding the need for
additional training on the issue in the next two years.
low
low-med
med
med-high
high
Dual agency
Designated agency
Subagency
App. 4-33
agency relationship
Vicarious liability
Agency disclosure
low
low-med
med
med-high
high
low
low-med
med
med-high
high
low
low-med
med
med-high
high
Structural defects
Sewer/Septic
Roof
Meth Labs
Valuation
Harassment
orientation)
Defamation
Personal assistants
Sex discrimination
Race discrimination
Source of income
App. 4-34
low
low-med
med
med-high
high
low
low-med
med
med-high
high
low
low-med
med
med-high
high
low
low-med
med
med-high
high
low
low-med
med
med-high
high
low
low-med
med
med-high
high
Privacy
Price-fixing
Boycotts
Advertising
Tying agreements
Kickbacks
Appraisers
Inspectors
Sign ordinances
"Flipping"
"As-Is" clauses
App. 4-35
Escrow
Frivolous lawsuits
Lock boxes
brokerages
Licensing issues
Trademark Issues
Based on your knowledge and experience in the real estate industry, please select the top ten issues you think most often form the
basis of disputes involving real estate agents and/or brokers TODAY.
1st:
I chose the 1st issue because:
2nd:
I chose the 2nd issue because:
3rd:
I chose the 3rd issue because:
4th:
5th:
6th:
7th:
App. 4-36
8th:
9th:
10th:
Based on your knowledge and experience in the real estate industry, please select the top ten issues you think most often form the
basis of disputes involving real estate agents and/or brokers in the NEXT TWO YEARS.
1st:
I chose the 1st issue because:
2nd:
I chose the 2nd issue because:
3rd:
I chose the 3rd issue because:
4th:
5th:
6th:
7th:
8th:
9th:
10th:
App. 4-37
NAR would like to acknowledge your participation in this survey in the Executive Summary of the Scan. If you agree to this
acknowledgment, please indicate below how your name should read. Specific responses to questions in the survey will be
anonymous.
Name:
Organization/Firm:
I do not wish to be identified in the Executive Summary
Please contact [email protected] if you have any questions regarding this survey.
App. 4-38

IREM REPORT - National Association of Realtors

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