PROFESSIONAL LIABILITY FOR FLORIDA LICENSED REAL ESTATE BROKERS & AGENTS IN RESIDENTIAL TRANSACTIONS

While most real estate professionals are honest, hard-working, and ethical. Unfortunately, just as the case in any profession, occasionally a rogue real estate agent and/or broker that will be able to conduct business and increase their transaction records with outright lies and fraudulent statements. Or, occasionally a real estate broker or agent will negligently handle a transaction, fall asleep at the wheel, or be in way over their head that they end up breaching their professional duties.

Duties Owed by Florida Real Estate Brokers & Agents

Florida law sets forth specific responsibilities owed by real estate brokers and agents to their clients. The duties imparted are dependent upon the relationship and representation in the residential transaction.

In a transaction broker relationship, wherein the transaction broker provides a limited form of representation to a buyer, a seller, or both in a real estate transaction and does not represent either fiduciary in a capacity or as a single agent. § 475.278(2), Fla. Stat. In a transaction broker relationship the duties of a real estate license include: dealing honestly and fairly; accounting for all funds; using skill, care and diligence in transaction; disclosing all known facts that materially affect the value of residential real property and are not readily observable to the buyer; presenting all offers and counteroffers in a timely manner; limited confidentiality, unless waived in writing by a party; and any additional duties that are mutually agreed to with a party. § 475.278(2)(a)-(g), Fla. Stat.

In a single agent relationship, wherein the real estate licensee represents either the buyer or seller, the single agent’s duties include the following: dealing honestly and fairly; loyalty; confidentiality; obedience; full disclosure; accounting for all funds; skill, care and diligence in the transaction; presenting all offers and counteroffers in a timely manner; and disclosing all known facts that materially affect the value of residential real property and are not readily observable. § 475.278(3)(a)(1)-(9), Fla. Stat.

Fraud

One of the most common causes of action against Florida real estate agents is for fraud. In order to prevail in a fraud claim, the Plaintiff will have to show that the real estate agent intentionally made a false statement concerning a material fact, or intentionally omitted a material fact about a property. In the context of a real estate transaction, a material fact is a fact that a reasonable person would find relevant to the decision of whether to purchase or sell a property. Florida law provides for damages in fraud action including costs to repair defects that were misrepresented in a property, diminution in value to the property based upon the fraudulent statement, cost to repair or replace misrepresented items in the property, related closing costs and potentially attorney fees and costs. Furthermore, fraud claims can also include special damages, including, punitive damages. Accordingly, parties need to be cognizant of what material statements are made about a property.

Negligent Misrepresentation

Negligent misrepresentation concerns to omissions and misrepresentations of material fact, but it addresses unintentional, rather than purposeful, omissions and representations. In Johnson v. Davis, 480 So.2d 625 (Fla. 1985) the Florida Supreme Court denounced the ancient concept of “Let the Buyer Beware” as related to residential real estate, and declared the law in Florida to be “[w]here the seller of a home knows of facts materially affecting the value of property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer. This duty is equally applicable to all forms of real property, new and used.” Following the Florida Supreme Court’s decision in Johnson v. Davis, the Florida Third District Court of Appeal in Revitz v. Terrell, 572 So.2d 996 (Fla. 3rd DCA 1990) held that a real estate broker could be held liable for the failure to disclose to the Buyer that the subject structure was in a FEMA Flood Zone and that the ground floor living area was built in violation of local building codes. The Court suggested that a real estate agent may be held liable for nondisclosure or misrepresentation even if the agent did not have actual knowledge of the legal status of the structure, but based upon the circumstances, should have known that the structure was non-conforming.

Breach of Fiduciary Duty

In certain circumstances a fiduciary relationship is formed and the real estate agent is required to act in the best interest of the real estate client. This high standard of care is indicative that real estate agents generally possess superior knowledge about real estate, which therein creates a potential abuse for their position of authority. Claims for breach of fiduciary duty can concern intentional and/or unintentional acts as well as negligent acts. One of the most common allegations in breach of fiduciary duty claims is the failure to disclose known material facts or defects in the subject property that the real estate agent was aware of, or should have been aware of. These claims can include misrepresentations about zoning laws and building regulations.

Breach of Real Estate Contract

In residential transactions a Florida real estate broker and/or its agent generally have a real estate listing agreement. This real estate listing agreement addresses the duties and obligations for the real estate broker and/or its agent in the transaction. In some transactions the real estate agent and/or brokerage fail to perform the obligations under the listing agreement this can cause damages stemming from failing to perform under the listing agreement.

Property Damage & Personal Injury Claims

Claims for property damage and personal injury are usually very fact sensitive. However, examples of these claims include, hosting an open house at a property with a hazardous condition, whether the hazardous condition is known or not. Further, real estate agents need to be very careful when escorting any clients to a property that is under construction.

Sweeney Law, P.A. has been involved in complex litigation matters representing real estate agents, real estate brokerages, and purchasers and sellers, in various complex claims throughout Florida.

Sweeney Law, P.A. Regularly Prosecutes and Defends

Complex Florida Real Estate Litigation Matters

Brendan A. Sweeney, Esq., LL.M., of Sweeney Law, P.A., a boutique firm in Fort Lauderdale, Florida, prosecutes and defends complex real estate litigation matters throughout Florida. Brendan A. Sweeney, Esq., LL.M. is an AV Preeminent Martindale Rated Attorney, that has been recognized as a Florida Super Lawyer in 2019, Florida Legal Elite in 2019, and as a Florida Super Lawyer Rising Star in 2018, 2017, 2016, 2015, and 2014. If you have any Florida real estate litigation questions and/or issues then contact Sweeney Law, P.A. at (954) 440-3993 immediately to protect your rights. www.sweeneylawpa.com.