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For lawyer 2:After I hopefully win small claims court for 10,000 to get the repairs done I wish to Sue the realtor for lies that he told me and I kept the emails and the text of the lies. Things like drainage being perfect when it’s anything but perfect, conflict of interest with the seller and the inspector, telling me the heating situation was perfect when it only goes to 62° at the most in the winter. Also perpetrating breach of contract and not getting the repairs done as per our contract all the while telling me the repairs were done and I would get documentation over three months ago.
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1/15/2018
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You are interested in the disclosure duties of Sellers and Real Estate Agents in Oregon. Is that correct?

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“ORS 696.805¹

Real estate licensee as seller’s agent

(1)A real estate licensee who acts under a listing agreement with the seller acts as the seller’s agent only.

(2)A seller’s agent owes the seller, other principals and the principals’ agents involved in a real estate transaction the following affirmative duties:

(a)To deal honestly and in good faith;

(b)To present all written offers, written notices and other written communications to and from the parties in a timely manner without regard to whether the property is subject to a contract for sale or the buyer is already a party to a contract to purchase; and

(c)To disclose material facts known by the seller’s agent and not apparent or readily ascertainable to a party.

(3)A seller’s agent owes the seller involved in a real estate transaction the following affirmative duties:

(a)To exercise reasonable care and diligence;

(b)To account in a timely manner for money and property received from or on behalf of the seller;

(c)To be loyal to the seller by not taking action that is adverse or detrimental to the seller’s interest in a transaction;

(d)To disclose in a timely manner to the seller any conflict of interest, existing or contemplated;

(e)To advise the seller to seek expert advice on matters related to the transaction that are beyond the agent’s expertise;

(f)To maintain confidential information from or about the seller except under subpoena or court order, even after termination of the agency relationship; and

(g)Unless agreed otherwise in writing, to make a continuous, good faith effort to find a buyer for the property, except that a seller’s agent is not required to seek additional offers to purchase the property while the property is subject to a contract for sale.

(4)A seller’s agent may show properties owned by another seller to a prospective buyer and may list competing properties for sale without breaching any affirmative duty to the seller.

(5)Except as provided in subsection (3)(g) of this section, an affirmative duty may not be waived.

(6)Nothing in this section implies a duty to investigate matters that are outside the scope of the real estate licensee’s expertise, including but not limited to investigation of the condition of property, the legal status of the title or the owner’s past conformance with law, unless the licensee or the licensee’s agent agrees in writing to investigate a matter. [1993 c.570 §3; 2001 c.300 §45; 2003 c.398 §11; 2005 c.393 §6]

Note: See note under 696.800 (Definitions).” https://www.oregonlaws.org/ors/696.805

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Customer reply replied 4 months ago
I’m actually wondering after I’m done small claims with the seller if I can then go ahead and sue the realtor and how much for?
Customer reply replied 4 months ago
I actually saw that before I’m just asking rather than a link for you to give me an answer please

If the agent knew there was a material defect and failed to disclose this you would be able to sue them.

"All real estate licensees have a general duty to disclose material facts known by the agent and not apparent or readily ascertainable to a party. This duty applies to both the listing agent and the selling agent. The duty is not the same as the affirmative duty of disclosure because it applies to all parties, not just to the client. Because it applies to all parties, the duty is limited in scope of the disclosure of known material facts not apparent or readily ascertainable by others.

The duty to disclose material facts comes into play on the listing side mostly in disclosure of material defects in the property. The duty to disclose material defects in property has long been an issue in the industry. Although it unfortunately happens, it is very rare that an agent will deliberately try to hide a material defect they know about. Most lawsuits against agents for failure to disclose material defects are based not on the claim that the agent failed to disclose known defects but that the agent was negligent in not knowing of the defect.

The classic failure to discover defects case is Easton v. Strassburger, a 1984 California case. In Easton, a California court found the listing agent had a duty to disclose facts materially affecting the value or desirability of the property which through reasonable diligence should have been known. According to the court, there was substantial evidence to support the finding that the listing agent was negligent because a number of red flags indicated problems with the property. The court held the problems, which involved earth movement, were within the knowledge a typical real estate licensee familiar with property in the area.

The Easton duty to discover material defects does not require listing agents to inspect the property they list. Rather, the standard is really one of diligence. The listing agent must use the care of an ordinary real estate licensee when looking at or showing the property they list. The agent cannot ignore red flags that would be obvious to the average real estate licensee. Click here for a copy of the Easton case." https://www.oregonrealtors.org/node/5382

The question will become if you were made whole by the small claims law suit.

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Customer reply replied 4 months ago
First thing that’s a problem is he was the listing agent and listed it as an efficient home but since it only get 62° and 65% humidity because of the damn garage that I wasn’t told about it is definitely not efficient. Since he was my agent and her agent and I ask pointed questions of things I could not have tested myself namely heat and drainage and he answer that the drainage was excellent…… The city itself knew that the drainage was not excellent which I found out last week. His own handyman said there’s a ditch out back which I was not told about and he’s friends with the seller and she knew that the garage had a moisture penetration issue. Since I was on the East Coast for everything except the walk-through he had above and beyond more of a duty to represent me in good faith. My question is let’s say his insurance is good for hundred thousand dollars, how much can I sue for? One thing after another since I’ve been here have gone wrong and I think I should even be able to sue for pain and suffering. I would have no reason to be upset and to be seeking damages if everything was move-in ready and these are the words he used in an email. I don’t expect perfection but I don’t expect deception either. The drainage is actually pretty terrible here.

There is no question based on what you are telling me that this would have been material and required to be disclosed. Let me pull up the Department of Real Estate agents liability in these matters. Oregon is not as strict as some States. I have seen punitive damages in some States.

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Customer reply replied 4 months ago
Ok, A few months after the sale I went to the city to look at all of the documentation since this house was built and I saw that it was built on a substandard lot. No who can be sued for not telling me this little tidbit?

There is no question that the listing agent needed to disclose material defects that they were aware of.

" Licensees are not responsible for misrepresentations by the seller unless they know of the misrepresentation and fail to disclose it. A buyer should carefully review the seller disclosures and verify, or ask their licensee to verify, any statements of concern." https://www.jolynne.com/pdf/oregonpropertybuyeradvisory.pdf

I am still researching the listing agents liability in terms of dollar amount.

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Customer reply replied 4 months ago
Ok, Being that this is a small town there’s nothing that happens that the realtor doesn’t know about. He also has all the attorneys wrapped around his little finger so I have been unable to get any help. So who’s responsibility was it to disclose that it’s a substandard lot?

If you feel that the listing agent had more information than the Seller and failed to disclose material defects and the misrepresentations or the withholding of information would have made a difference in you purchasing this property it would be worth bringing an action for price of the home.

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Any discussion of Oregon law brings me back to the leading California Case Easton v. Strassburger

"The classic failure to discover defects case is Easton v. Strassburger, a 1984 California case. In Easton, a California court found the listing agent had a duty to disclose facts materially affecting the value or desirability of the property which through reasonable diligence should have been known. According to the court, there was substantial evidence to support the finding that the listing agent was negligent because a number of red flags indicated problems with the property. The court held the problems, which involved earth movement, were within the knowledge a typical real estate licensee familiar with property in the area.

The Easton duty to discover material defects does not require listing agents to inspect the property they list. Rather, the standard is really one of diligence. The listing agent must use the care of an ordinary real estate licensee when looking at or showing the property they list. The agent cannot ignore red flags that would be obvious to the average real estate licensee." https://www.oregonrealtors.org/node/5382

Certainly knowingly failing to disclose would be a breach of on the part of the listing agent. Based on what you are telling me I would sue for the price of the house.

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I can provide a link for Attorneys outside of that County that provide FREE legal consultations that can evaluate the merits of your case against the agent and the likely outcome.

Which is the closest large city near you?

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Are you still online with me?

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The listing agent’s behavior is grounds for discipline under both ORS 696.301 and ORS 696.805

I am adding a link for an Oregon case against a listing agent http://www.publications.ojd.state.or.us/docs/A132368.htm

“ORS 696.301¹

Subject to ORS 696.396 (Investigation of complaints and progressive discipline), the Real Estate Commissioner may suspend or revoke the real estate license of any real estate licensee, reprimand any licensee or deny the issuance or renewal of a license to an applicant who has done any of the following:

(1)Created a reasonable probability of damage or injury to a person by making one or more material misrepresentations or false promises in a matter related to professional real estate activity.

(2)Represented, attempted to represent or accepted compensation from a principal real estate broker other than the principal real estate broker with whom the real estate broker is associated.

(3)Disregarded or violated any provision of ORS 659A.421 (Discrimination in selling, renting or leasing real property prohibited), 696.010 (Definitions) to 696.495 (Revolving fund), 696.600 (Definitions for ORS 696.392, 696.600 to 696.785 and 696.995) to 696.785 (Commissioner duties when illegal commingling of funds found) and 696.800 (Definitions) to 696.870 (Duties of real estate licensee under ORS 105.462 to 105.490, 696.301 and 696.870) or any rule of the Real Estate Agency.

(4)Knowingly or recklessly published materially misleading or untruthful advertising.

(5)Acted as an agent and an undisclosed principal in any transaction.

(6)Intentionally interfered with the contractual relations of others concerning real estate or professional real estate activity.

(7)Intentionally interfered with the exclusive representation or exclusive brokerage relationship of another licensee.

(8)Accepted employment or compensation for the preparation of a competitive market analysis or letter opinion that is contingent upon reporting a predetermined value or for real estate in which the licensee had an undisclosed interest.

(9) Represented a taxpayer as described in ORS 305.230 (Qualifications of persons representing taxpayer) or 309.100 (Petitions), contingent upon reporting a predetermined value or for real estate in which the licensee had an undisclosed interest.

(10)Failed to ensure, in any real estate transaction in which the licensee performed the closing, that the buyer and seller received a complete detailed closing statement showing the amount and purpose of all receipts, adjustments and disbursements.

(11)Has been convicted of a felony or misdemeanor substantially related to the licensee’s trustworthiness or competence to engage in professional real estate activity.

(12)Demonstrated incompetence or untrustworthiness in performing any act for which the licensee is required to hold a license.

(13)Violated a term, condition, restriction or limitation contained in an order issued by the commissioner.

(14)Committed an act of fraud or engaged in dishonest conduct substantially related to the fitness of the applicant or licensee to conduct professional real estate activity, without regard to whether the act or conduct occurred in the course of professional real estate activity.

(15)Engaged in any conduct that is below the standard of care for the practice of professional real estate activity in Oregon as established by the community of individuals engaged in the practice of professional real estate activity in Oregon. [1975 c.746 §23 (enacted in lieu of 696.300); 1977 c.649 §41; 1981 c.617 §14; 1989 c.532 §8; 1991 c.5 §41; 1993 c.547 §9; 1993 c.570 §13; 1999 c.470 §2; 2001 c.300 §28; 2003 c.398 §10a; 2005 c.116 §22; 2005 c.393 §3; 2007 c.319 §10; 2007 c.337 §6]”

ORS 696.805¹

Real estate licensee as seller’s agent

{C}· obligations

(1) A real estate licensee who acts under a listing agreement with the seller acts as the seller’s agent only.

(2)A seller’s agent owes the seller, other principals and the principals’ agents involved in a real estate transaction the following affirmative duties:

(a)To deal honestly and in good faith;

(b)To present all written offers, written notices and other written communications to and from the parties in a timely manner without regard to whether the property is subject to a contract for sale or the buyer is already a party to a contract to purchase; and

(c)To disclose material facts known by the seller’s agent and not apparent or readily ascertainable to a party.

(3)A seller’s agent owes the seller involved in a real estate transaction the following affirmative duties:

(a)To exercise reasonable care and diligence;

(b)To account in a timely manner for money and property received from or on behalf of the seller;

(c)To be loyal to the seller by not taking action that is adverse or detrimental to the seller’s interest in a transaction;

(d)To disclose in a timely manner to the seller any conflict of interest, existing or contemplated;

(e)To advise the seller to seek expert advice on matters related to the transaction that are beyond the agent’s expertise;

(f)To maintain confidential information from or about the seller except under subpoena or court order, even after termination of the agency relationship; and

(g)Unless agreed otherwise in writing, to make a continuous, good faith effort to find a buyer for the property, except that a seller’s agent is not required to seek additional offers to purchase the property while the property is subject to a contract for sale.

(4)A seller’s agent may show properties owned by another seller to a prospective buyer and may list competing properties for sale without breaching any affirmative duty to the seller.

(5)Except as provided in subsection (3)(g) of this section, an affirmative duty may not be waived.

(6)Nothing in this section implies a duty to investigate matters that are outside the scope of the real estate licensee’s expertise, including but not limited to investigation of the condition of property, the legal status of the title or the owner’s past conformance with law, unless the licensee or the licensee’s agent agrees in writing to investigate a matter. [1993 c.570 §3; 2001 c.300 §45; 2003 c.398 §11; 2005 c.393 §6]

Note: See note under 696.800 (Definitions)https://www.oregonlaws.org/ors/696.805

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Customer reply replied 4 months ago
Eugene or Coos BayDid you mean I could sue the realtor for the cost to replace the house? Has this ever been done before and did they win?

I don't see it in Oregon, I have seen these cases in other jurisdictions.

The last resort is going after their license so a lawsuit would be the first step.

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For example

"In Tanpiengco vs. Tasto, a 2002 case, purchasers, who discovered they had purchased property adjoining and partly on a former landfill, sued sellers and their brokers. In response to buyer’s question, listing agent said that the area was “open space” even though she knew it was a former landfill. Although the agent did not have to speak, if she does speak, she must provide a full and fair disclosure." http://www.stmclaw.com/Articles/Real-Estate-Agents-Liability.shtml

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Customer reply replied 4 months ago
Wow thanks, ***** ***** provide legal consultations gratis? If you were me what would your first step be?To get a independent home inspection since the first one was organized by the Realtor.

Keep track of all the information you have received and the sources of the information. The more evidence the better. If you can show that there were known defects due to repairs or attempts at repairs that would be very helpful too. You have to be careful with home inspectors they have very limited liability. I would certainly want licensed professionals providing their own investigation of the property.

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The Attorneys I provided state they provide FREE consultations. The State Bar can refer reputable attorneys. Give me one moment to provide the link.

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"You are entitled to an initial consultation of up to 30 minutes for a maximum fee of $35. Any additional fees must be arranged between you and the lawyer. We do not set a limit on the fees attorneys charge beyond the initial consultation." https://www.osbar.org/public/ris/lrsform.html

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Please do not hesitate to ask me any additional questions that you may have with regard to this matter. It would be my pleasure to continue to assist you.

If you would be kind enough to rate my service positively so I will receive credit for my work from the site I would appreciate it. A positive rating will not impact your ability to obtain a refund.

You may not be familiar with how the site works. The Attorneys to not receive credit from the site for their time or with customers unless the customer provides a positive rating. We answer your questions in good faith, hoping for a good faith response regardless of whether the law is in your favor or not. If you were unhappy with my service please let me know that you would prefer to work with another Attorney and I will opt out.

Can you see the rating scale on your end, 5 stars?

Thank you for your consideration.

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Customer reply replied 4 months ago
Last winter Someone who rented here stated there was some water that came into the garage although they would not qualify it. Then the previous owner stated on the disclosure form line 129 that no moisture or penetration of any water etc. and so she blatantly lied and the router knows everything that goes on in this town.

This goes on in a lot of places. I am sure a professional can tell that there had been water that came in through the garage.

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The laws changed dramatically from Caveat emptor "let the buyer beware." until today where there are all sorts of protections for purchasers. It was a slow evolution but necessary,

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If you would be kind enough to rate my service positively so I will receive credit from the site for my work I would appreciate it. Thank you.

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