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  1. #1
    Join Date
    Jun 2019
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    23

    Default Followup Thought I Purchased a Townhome with a Detached Garage

    this is a followup to the post from 3 months ago. it looks like I will be in court.

    in summary. I purchased a townhome (w/ attached single car garage) but also came with DETACHED GARAGE (across the street). BUT, the property in the mls listing only listed ONE PARCEL ID. I purchased the townhome but got kicked out of the external garage 6 weeks in.

    my agent researched this and it looks like the FIRST townhome owner (I am the THIRD townhome owner) did have in his real estate contract that he would receive external garage #10 with his townhome purchase. but for some reason the deed to the external garage was never deeded over (from the builder) to the first townhome owner. it may be that the title company assumed the external garage did not have it's own separate parcel ID (which my agent said is often the case) so nothing was deeded over. the separate parcel ID for the garage may have forgot to have been included on the original real estate contract). so there have been quite a few real estate transactions (3) for this townhome where the external garage was included (according to the MLS listing) but no parcel ID was ever listed therefore no deed was transferred (the deed had always been in the developers name). and all the other townhome owners freely used the garage once they purchased the townhome so they did have every reason to believe they owned it.

    but what appears to have happened is the builder only sold one of two detached garages in the beginning (11 years ago) (there is about 40 detached garages on the HOA property). I think they did this and then realized they weren't getting the ADDED VALUE in the sale they expected so they just kept the detached garages and rented them out (or let people freely use them as there wasn't really enough tenants on the HOA property that wanted to rent them out). but after 11 years, they finally decided to sell ALL the external garages to to a corporation (who is now renting them out). and they had no record they had already sold one (to the first townhome owner) so they sold it again except this time the deed was transferred to the corporation.

    so my question is, who do I sue? the reason I asked is I have talked to quite a few real estate lawyers and they have not all given me the same answer (I know that is probably a shocker). but, many of them do think I have a strong case.

    1) LISTING AGENT (one lawyer recommended this) - on it's surface, I would of thought the LISTING AGENT was most liable and that this specific instance is exactly what ERRORS AND OMISSIONS INSURANCE SHOULD COVER. as he/she clearly didn't screen the property for errors (check the county platt map to ensure the external garage didn't have it's own separate parcel ID). instead, he/she went my previous sales of the townhome (which only showed one parcel ID) and by what the seller told them. but another lawyer tell me, I did not sign a contract with them so the argument is weak.

    2) SELLER and MY AGENT (2 lawyers recommended this) - according to one lawyer, the parties I signed a CONTRACT with is the SELLER (real estate contract) and MY AGENT/BROKER (buyer/broker agreement) and they are the ones I have the STRONGEST CASE against (negligence against my agent and misrepresentation against the seller). the lawyer said if the SELLER LOST IN COURT, they would have a STRONG CASE against their agent (LISTING AGENT) because they had a contract with the listing agent. of course my agent says he is not liability for anything. he has a RIGHT TO ASSUME the listing has correct accurate information (the listing agent did their job). he also says this unrecorded deed gives all realtors in this sale IMMUNITY from liability (he didn't say that exactly but it's obvious from talking to him many times that is his position). however, everything I have read tells me the only party (or parties) that can be liable for my loss must be part of my real estate transaction (therefore the original title company and developer are out). I cant' sue someone from 2 or 3 real estate deals ago even if they seemed to lite the match that started everything.

    3) both LISTING AGENT and MY AGENT (one lawyer recommended this) -


    of course, if my agent's argument that "hey, I have a right to assume the listing is correct" IS VALID, then the listing agent will just argue "hey, I have a right to assume the previous real estate sales for this townhome have correct information therefore I do not need to check anything (such as a platt map to ensure the external garage does not have it's own separate parcel ID)." in fact, my agent has already made that argument to me. and the listing agent will argue "it was the responsibility of YOUR AGENT to screen the property.....he represented YOU (NOT ME). how can you expect us to catch this error but not your own agent who represents you."


    MY OPINION - both agents should of checked to ensure the external garage did not have it's separate tax ID (their just lazy). isn't that there job as REAL ESTATE PROFESSIONALS? I thought that was what they got paid for. sure you can go by what was in a previous MLS listing. but you will NEVER CATCH AN ERROR if you do that (that is probably why this error was never caught over 3 different real estate transactions). and I would think that is both the listing agent and my agent's PRECISE JOB (use there expertise to screen an MLS listing for errors (and this was a BIG ERROR)). I didn't even know what a PLAT MAP or a PARCEL ID was until this all happened. but if they argue that, then I don't think they can argue I am liable because I did not do my due diligence (as written in as a provision in the real estate contract). my agent can't then say "hey, you should of checked the platt map to make sure the external garage did not have a separate tax ID." checking PLATT MAPS isn't something a typical real estate buyer would every think about when making a real estate purchase.


    any thoughts? maybe this could go any which way in court (I will be in small claims court). some lawyers did tell me small claims is a crapshoot (anything can happen) but many of them thought I would at least get something if I took this to small claims court and made my argument. those judges do try and help those that have been harmed if they can.

  2. #2
    Join Date
    Sep 2010
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    19,255

    Default Re: Followup Thought I Purchased a Townhome with a Detached Garage

    Nope, real estate agents sell property. MLS is just an advertisement.

    E&O insurance covers issues when someone has a valid claim against the insured. No insurer is going to pay out if they don't think (or haven't been found in court) that the insured has committed an actionable error.
    As pointed out the seller's agent has no responsibility to you. Your lawyer gave you the straight story (in #2).

    There's no "right to assume the listing is correct." Again, it is only an advertisement. Having the purchase contract reviewed by an attorney and doing due diligence (title search, plats, etc...) are indeed something that buyers are recommended to do. Again, we've not seen the purchase contract (which is what matters), so that is the only hope that if it says or perhaps implies the property included the garage, then you have an actionable breach. Otherwsie, you learned an expensive lesson.

  3. #3
    Join Date
    Mar 2013
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    17,224

    Default Re: Followup Thought I Purchased a Townhome with a Detached Garage

    Here's the original thread on this topic:

    https://www.expertlaw.com/forums/sho...730&highlight=

  4. #4
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    Nov 2013
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    Default Re: Followup Thought I Purchased a Townhome with a Detached Garage

    Quote Quoting flyingron
    View Post
    Nope, real estate agents sell property. MLS is just an advertisement.

    E&O insurance covers issues when someone has a valid claim against the insured. No insurer is going to pay out if they don't think (or haven't been found in court) that the insured has committed an actionable error.
    As pointed out the seller's agent has no responsibility to you. Your lawyer gave you the straight story (in #2).

    There's no "right to assume the listing is correct." Again, it is only an advertisement. Having the purchase contract reviewed by an attorney and doing due diligence (title search, plats, etc...) are indeed something that buyers are recommended to do. Again, we've not seen the purchase contract (which is what matters), so that is the only hope that if it says or perhaps implies the property included the garage, then you have an actionable breach. Otherwsie, you learned an expensive lesson.
    I have to disagree with you that the seller's agent has no duty to the buyer.

    The OP (as far as I have looked) did not tell us what state this is happening in. But a case law search of all the states finds many cases where there is a duty of the seller's broker to investigate that the information on the listing is correct. And to not verify the listing and have knowledge of any defects in the listing is negligence and therefore, actionable.

    One such case that I found is in CA.


    "It is the law of this state that where a real estate broker or agent, representing the seller, knows facts materially affecting the value or the desirability of property offered for sale and these facts are known or accessible only to him and his principal, and the broker or agent also knows that these facts are not known to or within the reach of the diligent attention and observation of the buyer, the broker or agent is under a duty to disclose these facts to the buyer
    If a broker fails to disclose material facts that are known to him he is liable for the intentional tort of "fraudulent concealment" or "negative fraud." (Warner Const. Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 293-294 [85 Cal. Rptr. 444, 466 P.2d 996]; Cooper v. Jevne, supra, 56 Cal. App.3d at p. 866; Lingsch v. Savage, supra, 213 Cal. App.2d at p. 735-736.)
    The issue, then, is whether a broker is negligent if he fails to disclose defects which he should have discovered through reasonable diligence. Stated another way, we must determine whether the broker's duty of due care in a residential real estate transaction includes a duty to conduct a reasonably competent and diligent inspection of property he has listed for sale in order to discover defects for the benefit of the buyer.
    You can read the entire case and many more where the seller's broker has a duty to the buyer. Over 8,000 cases came up in my search.

  5. #5
    Join Date
    Jun 2019
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    23

    Default Re: Followup Thought I Purchased a Townhome with a Detached Garage

    I am in a smaller conservative state out west.

    I have been reading up a lot on agent liability and it certainly appears to vary from state to state (with liberal states being the best place to be if something like this happens to you). there just isn't many laws in my state governing this. the real estate laws do say an agent cannot be negligent, misrepresent or deceive. and agents may have there licenses suspended for such action.

    but it seems like I read (after searching about this issue online) MISREPRESENTATION is what a listing agent is commonly HELD LIABLE FOR IN COURT. but misreprentation would harm the BUYER, not the seller. so it would seem to me that YES, listing agents can certainly be held liable for the financial loss of a buyer due to an error in the MLS listing.

    unless I am missing something.


    but one lawyer did try to tell me I have to sue the seller (since I had the contract with him) and then he/she can sue the listing agent for their loss (and probably win fairly easily). this lawyer told me, just sue everybody (since this is small claims court) and let the judge decide who (if anyone) shared liablity and to what extent. but if this is true, how can a listing agent be held liable for misrepresentation.

  6. #6
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    Nov 2013
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    Default Re: Followup Thought I Purchased a Townhome with a Detached Garage

    How about just telling us what state this is happening in? Then I can search the common law and see if there are cases that are on point to your situation.

  7. #7
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    Sep 2010
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    Default Re: Followup Thought I Purchased a Townhome with a Detached Garage

    An ERROR is not a misrepresentation, and MLS listings are specifically disclaimed as not necessarily accurate. I'd like to see some hard evidence that an "implication" in an MLS listing has any actionable basis against anybody.
    In order to recover against the broker you're going to have to show some specific misrepresenation or reckless behavior which just doesn't seem to have have occurred here.

    It's a shame the INCOMPLETE details are spread all over two threads here, but it seems that there is no misprepresentation. The seller's purchase contract seems to imply that the seller (and hence his agent) thought he owned hte property in question. Now it all comes down to the actual purchase contract and the various deeds in play. What the agent or listing said or should have done is immaterial. Agents do not normally run title searches, review legal documents (it would be illegal for them to do so), or have property appraisals done. These are all things done by the purchaser's due diligence (often enforced by their lender).

  8. #8
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    Default Re: Followup Thought I Purchased a Townhome with a Detached Garage

    I think that it is relatively ease to find out if the seller held title to the garage or not when it was listed by the selling agent. The agent didn't do that. That might be negligence that is actionable.

    And since we still don't know what state this happened in, we can't say for sure.

    But you seem to think that this is all on the buyer to discover. It's not.

  9. #9
    Join Date
    Jun 2019
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    Default Re: Followup Thought I Purchased a Townhome with a Detached Garage

    by the way, can these THREADS BE DELETED at a later point? I would like to share much more detailed information but if this thread stays on the internet forever, I think I'll pass on that for the time being.

  10. #10
    Join Date
    Oct 2016
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    Default Re: Followup Thought I Purchased a Townhome with a Detached Garage

    You need to assume that anything put on the internet will be there forever.

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