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This is for a Real...
This is for a Real Estate Attorney. I have a real estate license but have not practiced actively for 30 years. I listed a property with a Commercial Broker and another Broker
bought the property. She the purchaser removed all contingencies but in the end backed out because a TDS was not issued to her. I lost $250,000 on the sale because
I sold the property for that much less over a year later. The Commercial Broker I hired
I orginally asked him when he was having me fill out forms do we need anything else?
Then I asked about the TDS he said it was not required because the building was two commercial and two residential units. I am suing the Broker. I consulted with my attorney today and he said it is 50/50 he the isting Broker will say he never said that.
He also told me I should have not asked the question and he shouldn't have answered because in his listing agreement which I signed there is a sentence Owner hereby acknowledges that Broker is not qualified to give legal or tax advice if Owner desires such advice he should consult with an attorney or accountant After stating this facts I don't agree. I never handled any of the paperwork or negotiations Is a TDS a legal document or part of paperwork issued? Thanks
Submitted: 1 year ago.Category: CA Real Estate
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Answered in 2 hours by:
6/18/2016
Lawyer: socrateaser, Attorney replied 1 year ago
socrateaser
socrateaser, Attorney
Category: CA Real Estate
Satisfied Customers: 39,354
Experience: Attorney and Real Estate Broker
Verified

Hello,

Cal. Civil Code 1102(a) limits the requirement of the Transfer Disclosure Statement (TDS) to transactions concerning "not less than one nor more than four dwelling units." The listing broker is responsible for correctly processing the transaction. In my view, it doesn't matter what the listing broker told you, because you were required to provide the TDS to the prospective buyer, and the failure of the broker to correctly handle the transaction is negligence.

That said, as someone with a real estate license, a defendant could claim that you were "comparatively negligent*," i.e., that you also should have known of your responsibilities, despite your not using your license (assuming that your license was active). Regardless, the broker is ultimately responsible, so I think at worst, you would be able to show that the broker was at least 50% liable for your losses.

*“The comparative fault doctrine ‘is designed to permit the trier of fact to consider all relevant criteria in apportioning liability. The doctrine “is a flexible, commonsense concept, under which a jury properly may consider and evaluate the relative responsibility of various parties for an injury (whether their responsibility for the injury rests on negligence, strict liability, or other theories of responsibility), in order to arrive at an “equitable apportionment or allocation of loss.’ ” [Citation.]’ ” (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th1270, 1285 [164 Cal.Rptr.3d 112].)

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer (click 3, 4 or 5 stars) -- otherwise, I receive nothing for my efforts in your behalf.

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Customer reply replied 1 year ago
Please explain The Comparative fault doctrine in layman terms I am sorry but it is hard to understand. Also is a TDS
a legal form or a Broker form to be issued on all transactions? Or does his disclaimer in the listing agreement get him off all together? Thanks
Lawyer: socrateaser, Attorney replied 1 year ago

Please explain The Comparative fault doctrine in layman terms I am sorry but it is hard to understand.

A: Sorry, for the legalese. I like to make sure that my answers are thoroughly supported by citations to legal authority, so that the customer knows that I'm not pulling answers out of thin air.

The comparative fault doctrine simply means that if a plaintiff proves that the defendant is negligent (i.e., acts below the standard of care due from the defendant to the plaintiff), the defendant is entitled to prove that the plaintiff should have known what he or she was doing, and that the jury should consider that in imposing the amount of liability on the defendant. Simple example:

Driver is following less than one car length behind another vehicle at 70 mph. Lead driver is distracted by mobile phone text, accidentally hits the brake pedal, and is hit from behind. Following vehicle is negligent for following too closely, but lead vehicle is comparatively negligent by allowing the distraction to cause the vehicle to decelerate too quickly.

Also is a TDS a legal form or a Broker form to be issued on all transactions?

A: Yes, on all residential transactions.

Or does his disclaimer in the listing agreement get him off all together?

A: You never mentioned any disclaimer in your original question. In general, a disclaimer of liability for acts or omissions about which the listing agent has a fiduciary duty to perform, would be invalid and unenforceable. The seller is relying on the agent's knowledge and abilities, and a disclaimer flies directly in the face of that fiduciary duty.

This is a difficult issue which would require a great deal of research to find case law (if it exists) that would be sufficiently "on point" to resolve the disclaimer issue. If that's something you are interested in having done, I can send you a premium services invitation, and we can take the matter offline (n.b., customary legal services fees would apply).

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer (click 3, 4 or 5 stars) -- otherwise, I receive nothing for my efforts in your behalf.

Thanks again for using Justanswer!

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Lawyer: socrateaser, Attorney replied 1 year ago

Hello again,

I see that you have reviewed my answer, but that you have not provided a rating. Do you need any further clarification concerning my answer, or is everything satisfactory?

If you need further clarification, concerning this matter, please feel free to ask. If not, I would greatly appreciate a positive feedback rating for my answer (click 3, 4 or 5 stars) – otherwise, I receive nothing for my efforts in your behalf.
Thanks again for using Justanswer!

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Customer reply replied 1 year ago
I told you the disclaimer about seeking advice through a tax account or attorney please read back let me know Thanks
Lawyer: socrateaser, Attorney replied 1 year ago

Okay, I searched for the term, "disclaimer," and it does not appear in your original question. If you mean the clause: "in his listing agreement which I signed there is a sentence Owner hereby acknowledges that Broker is not qualified to give legal or tax advice if Owner desires such advice he should consult with an attorney or accountant," that's not a disclaimer. Regardless, the sentence is unenforceable, in my opinion, because Under the Real Estate Commissioner regulations Section 10176.5.

(a) The commissioner may, upon his or her own motion, and shall upon receiving a verified complaint in writing from any person, investigate an alleged violation of Article 1.5 (commencing with Section 1102) of Chapter 2 of Title 4 of Part 4 of Division 2 of the Civil Code by any real estate licensee within this state. The commissioner may suspend or revoke a licensee’s license if the licensee acting under the license has willfully or repeatedly violated any of the provisions of Article 1.5 (commencing with Section 1102) of Chapter 2 of Title 4 of Part 4 of Division 2 of the Civil Code.

(b) Notwithstanding any other provision of Article 1.5 (commencing with Section 1102) of Chapter 2 of Title 4 of Part 4 of Division 2 of the Civil Code, and in lieu of any other civil remedy, subdivision (a) of this section is the only remedy available for violations of Section 1102.6b of the Civil Code by any real estate licensee within this state.

In short, your recourse is to file a complaint with the Real Estate Commissioner concerning the alleged failure to provide the TDS as part of the transaction.

Note: In my opinion, the Commissioner's regulation is probably unenforceable to the extent that it limits your ability to sue the broker for professional negligence, because the regulation effectively deprives you of a legal right to sue, which is wholly beyond the scope of the Real Estate Commissioner's powers. But, that's an entirely different (and much more complicated civil rights) issue.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer (click 3, 4 or 5 stars) -- otherwise, I receive nothing for my efforts in your behalf.

Thanks again for using Justanswer!

Ask Your Own CA Real Estate Question
Lawyer: socrateaser, Attorney replied 1 year ago

Hello again,

I see that you have reviewed my answer, but that you have not provided a rating. Do you need any further clarification concerning my answer, or is everything satisfactory?

If you need further clarification, concerning this matter, please feel free to ask. If not, I would greatly appreciate a positive feedback rating for my answer (click 3, 4 or 5 stars) – otherwise, I receive nothing for my efforts in your behalf.
Thanks again for using Justanswer!

Ask Your Own CA Real Estate Question
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socrateaser
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Category: CA Real Estate
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