A fiduciary is a person that is responsible for acting on behalf of another person and making decisions in their best interests. Fiduciaries take on legal obligations or duties to their client by merit of their expertise and comprehensive training. A “special relationship” is required between the client and the fiduciary. Lawyers, trustees, and parents all have fiduciary duties. Real estate agents have fiduciary duties to every one of their clients as well.
The most substantial aspect of a real estate agent’s fiduciary duty is the need to be transparent and truthful. The real estate agent can spend a lot of the house buying and/ or selling process working separately from the client by dealing with third-party vendors, scheduling inspections, and examining contract papers. The real estate agent is thus required to act as a delegate for the client by making decisions for them and also conveying information in a clear and timely way to the client.
The Real Estate Agent’s Fiduciary Duties Comprise of:
- A duty to completely disclose every material fact to the client (whether good news or bad news)
- A duty to completely disclose every purchase offer to the seller (regardless of price)
- A duty to manage the client’s details and affairs with faithfulness and privacy
- A duty to abstain from representing the opposing party in the same real estate deal devoid of both knowledge and permission of each party (this would be dual agency)
Frequent Real Estate Breaches of Fiduciary Duty
Real estate agents are retained by clients to act in their best interest, not in one’s own best interest. When a real estate agent chooses to act for their own personal welfare to the disservice of their client, they breach the fiduciary duty they owed to that client. Here are examples of frequent breaches of fiduciary duty:
- Receiving confidential fees or profits that aren’t disclosed to their clients
- Not informing a seller of other offers following an offer being accepted
- Not advising a buyer of any material shortcomings of a property which the agent knew or should have known about
- Double representation or making a sale of a property by acting as a real estate agent for both the buyer and the seller without each party being advised of this dual agency in writing
- Furnishing the client’s personal details to the other broker without the client’s consent
- To decline or accept an offer without the client’s written consent
Each one of these breaches could have a considerable financial consequence on the client. A breach of the fiduciary duty may also cause other irreversible damage to the client, particularly if the client is trapped with a house full of defects or worse, had their personal details revealed to unknown individuals.
Should I Get a Lawyer If My Real Estate Agent Breached Their Fiduciary Duty?
If your real estate agent has breached their fiduciary duty, you might feel baffled as to how to continue. You were most likely financially impacted by the breach. You might have lost the chance to sell your home to the highest bidder, or you might find yourself listed as a defendant in a lawsuit that involves a failure to disclose. Real estate lawyers can inform you on how to best continue and can instruct you on your real estate agent’s obligations. You may need to hire a real estate expert witness to help you advance your breach of fiduciary claims in a court of law against your former real estate licensee or broker.
- Breach of Fiduciary Duty Penalties
- What Constitutes a Breach of Fiduciary Duty?
- Most Common Reasons for Real Estate Disputes
- Misrepresentation in Real Estate: When To Sue
- LaMance, Ken. “Real Estate Agent Liability: Breach of Fiduciary Duty.” LegalMatch Law Library, 11 May 2018, www.legalmatch.com/law-library/article/real-estate-agent-liability-breach-of-fiduciary-duty.html.
Real Estate Expert Witness Services by Craig Cherney, Esq.
Craig Cherney is a trusted client advisor and a sought after real estate expert witness who is hired by the nation’s top Real Estate Litigation Attorneys to help resolve their litigated real property matters. Craig has appeared as a testifying expert witness before judges and juries in California, Arizona, Nevada and other jurisdictions across the country. Craig Cherney, Esq. Expert Witness Real Estate. 480-240-0040.