Some of you will remember my post on the lawsuit in Southern California where the buyers of a home were suing their agent because they felt they overpaid, and the agent had acted to hide that information from them (Refresher available here).

This case had lawyers salivating, and brokers trembling, as it potentially could provide precedent and open the door to lawsuits by home buyers who purchased homes during the recent run-up in housing prices, and are now seeing their local markets stagnate or fall.

According to the following article released by the California Association of Realtors, the jury on the case found in favor of the real estate agent.

There was no mention of the issues that I flagged in my earlier post, namely that the agent didn’t share the appraisal or list of comparable properties with the client, or that he encouraged them to get their home loan through him and use his appraiser.

I’m sure that there are many real estate agents out there who also are great mortgage brokers. I’m not one of them. Frankly, I’m not smart enough to keep up with all the issues in real estate law and the local market, plus all the ongoing changes in the lending market.

Thanks for reading . . .

REALTOR® WINS HIGH PROFILE JURY TRIAL
After only two hours of deliberation yesterday, the jury unanimously vindicated a buyer’s agent accused by his clients of failing to disclose that two other homes in the neighborhood sold for less than what they paid. As a trial court case, this decision in Ummel v. Little is binding on the parties to the case, but has no binding authority for other cases. Moreover, the buyers may file an appeal.

This case involved a couple who bought a home in a coastal Carlsbad community in 2005 for $1.2 million. They regretted their purchase when they discovered that two other homes sold for about $150,000 less than theirs. They sued their real estate agent for negligent misrepresentation and breach of fiduciary duty. Their lawsuit grabbed national attention, given the recent downturn in the real estate market.

At the trial, the agent’s attorney argued that there were valid reasons these two other properties sold for less. One home, for example, had a lap pool which was unappealing to many buyers, and the sellers wanted to rent back the home for two years.

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Well, it was just a matter of time before someone who bought at the top of the market sued their agent because they paid too much for their house. In this article in today’s New York Times, we learn of the sad story of the Ummels who bought a retirement home in Carlsbad, CA to be near their children.

The Ummels worked with a Buyer’s Agent who had a fiduciary responsibility to assist them in finding and purchasing their home. They looked for quite a while, fired one agent and then canceled contracts on two other homes that they had written offers on. I’m sure nerves were getting a little frayed for all concerned by the time they finally bought their home.

“Ms. Ummel claims that the agent hid the information that similar homes in the neighborhood were selling for less because he feared she would back out and he would lose his $30,000 commission.”

Where things get interesting, and their agent, Mike Little, makes the rest of us look bad is stated further on in the article:

“Mr. Little also worked as a mortgage broker. The Ummels say he encouraged them to get their loan through him. Mr. Little ordered an appraisal of the house but did not respond to the couple’s requests to see it, the suit charges.

A few days after the couple moved in, in August 2005, they got a flier on their door from another realty agent. It showed a house up the street had just sold for $105,000 less than theirs, even though it was the same size.

Then they finally got their appraisal, which told them the house up the street was not only cheaper but had a pool. Another flier in early October mentioned a house down the street that was the same size and closed the same day as the Ummels’ but went for $175,000 less.

The Ummels accuse Mr. Little not only of withholding information but of exaggerating the virtues of their house to push them into a deal.

Ms. Ummel said in her deposition that Mr. Little had told them “many times that it was a very good buy.”

The mortgage brokerage that funded the loan, and the appraisal company both settled out of court, but Mr. Little fights on. I bounced this off of fellow contributor Eric Trailer, and we saw a couple of red flags waving.

1) Mr. Little acted as the agent and loan broker. This is legal, but as noted in the article, he now has twice the motivation to get the deal done.

2) He urged them to get their loan through him - again legal, but the ice in sunny Carlsbad is getting thinner.

3) Mr. Little’s appraiser found the house to be worth $1,150,000 to $1,200,000 in the summer of 2005, the Ummels’ appraiser valued the house at $1,050,000. This is about 10-15%, which is pretty significant, but within the realm of possibilities. I’m getting nervous if I’m Mr. Little’s broker however.

4) Mr. Little didn’t share his appraisal the Ummels. (His broker is drinking heavily at this point.)

Long story somewhat less long . . . The Ummels (plaintiffs) are suing because they didn’t get what they felt was appropriate representation from their agent. This is what many consumers expect of Realtors, and books like Freakonomics don’t help.

One of the things we contributors to 3Oceans preach is Transparency in Real Estate. We share the information and tools that we use with our clients, provide data from unbiased sources like Altos Research, and don’t try to do loans and sell houses at the same time.

End of rant, let the comments fly!

Thanks for reading . . .

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At a social event over the weekend, I got into a conversation about real estate with another guest (not difficult, since it’s on everybody’s minds!), and the discussion unfortunately turned to dirty tricks played by some agents. Even more unfortunately, both the other guest and myself had seen quite a few such tricks, me from within the industry, and he as an interested observer.

So…I‘ve decided to sponsor a “Shady Agent Tricks” competition! The rules are pretty simple: In the comments to this post, submit your entry for something shady that you’ve seen an agent do. It can be something illegal, unethical, or something that’s technically neither but still smells funny. You may not name any agent or mention the agency for which he/she works, or describe them in a way that could identify the person (e.g. here’s something that is regularly done by the agent who dominates the XYZ neighborhood). The competition ends this Saturday at midnight PST, and the judging panel (that would be me) will select the winner, who will be awarded a $10 Starbucks card. The four runners-up will be honored with the glory of being mentioned on my blog plus a linkback to their own (if they have one.) The competition is open to both Realtors and civilians.

Why, you might ask, would a professional Realtor want to expose some of these tricks on his own blog? Isn’t that just bad publicity? I think of it differently. More publicity about shady agent practices is good for consumers, and by extension is therefore good for all consumer-friendly practicing agents. I certainly expect some objections to airing our industry’s dirty laundry.

Here are my entries for the competition…

1) Difficult to show double-dipping trick — Listing agent makes the property nearly impossible to preview or show: open house lasts only an hour; property never gets shown on broker tour; agent convinces seller not to use a lockbox; property only available to show with 24 hours’ notice. Result: Property languishes on the market for several months and then — whowuddathunkit!! — the listing agent comes in with his own buyer. He convinces the seller to take the deal, and pockets the full commission. The listing agent definitely wins, and the seller is left scratching his head about why so few showings happened on the property.

2) Late-to-the-MLS double-dipping trick — Listing agent takes the listing on Monday and markets the hell out of it in the weekend papers plus Craigslist. Mysteriously, the listing doesn’t make it to the MLS by the deadline that week for it to make the local broker tour (where dozens of local brokers will see it and make recommendations to their clients about it), and in fact the listing is still not on the MLS by the following Monday. Due to the intensive marketing, and a dozen street signs, the first open house weekend is flooded (mostly by unattached buyers, since the ones with agents who for the most part rely on the MLS to tell them about new properties weren’t aware of this one) and — voila!! –
the listing agent presents an offer from one of these unattached buyers to the seller on Monday, who accepts it. Again, the listing agent pockets both sides of the commission.

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Image courtesy of creepylawyer.com

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Am I missing something? How does this guy make a living if he doesn’t charge his clients a commission?

Oh, wait a minute…he doesn’t charge his buying clients a commission…as in, “If you hire me to represent you in buying a house, I will not directly send you a bill.”
This is the kind of sleaze that gives our business a bad name…caveat emptor. Better hope the Freakonomists don’t see this ad, or it’ll become the frontispiece of yet another Realtor-bashing spree.

The above link may be gone in a day or two; here’s a screenshot:

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