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November 27, 2018 • Stay Connected!
         


QUESTION:  My buyer closed on a house purchase. Twenty days later, my clients were presented with an almost $2k assessment through the HOA. Buyers did not know about this assessment and they were not informed in any way that this assessment was coming even though owners were sent notices about it. Neither the listing agent, nor the seller, nor the HOA want to assume responsibility for not disclosing this assessment to my buyers prior to close of escrow. What is my legal course of action? Is there anything I can do to make any of those parties responsible for this mishap?



ANSWER:  Broker's use of the words "my" and "I" in the questions asking about legal course of action and what can be done, are misplaced. When the transaction closed, that ended the opportunity for broker to provide RE Brokerage Services, the only services a broker is licensed and insured to provide to a party. When a party discovers, after closing, that a wrong was done to them, the party needs legal counsel. After closing, there is no way to fix a problem with the provision of Real Estate Brokerage Services. A problem that is discovered after closing is a problem that results, most likely, from either a breach of contract or a misrepresentation/fraudulent concealment by the other party to the transaction. Both claims (breach of contract and misrepresentation/fraudulent concealment) are legal claims, requiring legal analysis (application of law to the facts of the situation) and legal advice to the injured party. Real estate brokers are not licensed nor insured to deliver legal analysis or legal advice.
 
One of the most difficult tasks for any REALTOR is to deliver the hard news to buyer that broker can do nothing to solve a post-closing problem or correct a post-closing wrong. REALTORS are problem solvers and understandably, the desire in a situation like this is to solve the problem. Broker cannot solve this problem. Broker's only jobs, in this situation, are to genuinely empathize with her buyer and advise her buyer to seek legal counsel. Only buyer's lawyer can apply law to the actual facts of this situation so as to reach a conclusion that then allows for the giving of legal advice.
 
Does buyer have a viable claim? There is no way the Hotline lawyer can answer that question. The answer to that questions depends entirely upon facts that are unknown to the Hotline lawyer and may be unknown to buyer and buyer's broker. Much of what buyer's lawyer will do for buyer is help buyer to understand the facts that must be known before legal advice can be given and assist buyer in obtaining that knowledge. What did seller and listing broker know about this assessment (if anything) and when did they know it? How did that impact their disclosure obligations? What was the duty of the HOA to make disclosure to buyer? Did this HOA deliver a Resale Certificate to buyer? If not, why not? If no resale certificate was delivered because no resale certificate was required, then how could the HOA be liable to buyer? Was there some other relationship between buyer and the HOA that could have triggered an obligation to make this disclosure? How was the "Charges and Assessments" provision marked on F21? If it was not marked, requiring seller to pay all Charges and Assessments at closing, why wasn't it? Does this assessment fit the definition of Charges and Assessments as defined by F21? All of these questions, and others, will have to be answered by buyer and buyer's lawyer before buyer's lawyer will be able to give the legal advice that buyer needs and that buyer seems to be seeking from buyer's broker.
 
The best, and only, advice that broker can give buyer is that buyer should seek the advice of buyer's lawyer. Buyer may have a claim against seller or listing broker or the HOA. It is possible that buyer has a claim against buyer's broker, depending on advice given to buyer regarding the "Charges and Assessments" provision of F21. It is also possible that buyer has no claim against any of these people/entities. It is possible that buyer has no recourse against anyone. It is also possible that if buyer's broker attempts to give buyer legal counsel, which is the only type of counsel that can be given in this situation (since there are no remaining RE Brokerage Services to be performed) that buyer's broker will incur new liability to buyer based on broker's unauthorized practice of law. As hard as it is, broker must detach herself personally from this perceived wrong done to buyer and advise buyer to seek legal counsel. That is broker's only course of action.
              
 

 

The Legal Hotline Lawyer does not represent Washington REALTORS or its members. To browse through our database of past Q & A's, visit www.warealtor.org. Attorney Annie Fitzsimmons writes the Legal Hotline Question and Answer of the Week. Please submit questions to legalhotline@warealtor.org or leave a message at 800.562.6027. Please include your NRDS number.



Thank you, Corporate Sponsors & Advertisers!
   
  
 
Friday Video Revision Form 22AC (not 22AN)
Thank you, Will Springer with John L. Scott in Seattle! Will astutely caught an error in our last Friday Video on Form 22A, Paragraph 1. We accidentally listed Form 22AN as a form used to change lenders instead of Form 22AC. We pulled the video and revised the footage - here is the link to the updated video. Our apologies for any confusion! As always, any questions you have on forms can be directed to Annie Fitzsimmons.
 
Video →
  
 
Leadership Institute Deadline Approaches!
REALTORS®, would you like to participate in an intensive, dynamic leadership experience? Apply for the 2019 Leadership Institute and attend a fun, powerful series of leadership retreats. Hurry, though...the deadline to apply is November 30th!
 
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Join Us for Legislative Day!
Join REALTORS® from across the state for our annual Legislative Day event! One of our most energized events, Legislative Day is a wonderful opportunity to get involved in many ways. See you there!
 
 
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Washington State Bar WUCIOA Class
Washington REALTORS® Legal Hotline Lawyer Annie Fitzsimmons will be a panelist at an upcoming Washington State Bar Association class and they've extended a welcome to REALTORS® who would like to register. 
 
December 6, 2018: The Washington Uniform Common Interest Ownership Act and Its Impacts on Real Property Law
The Washington Uniform Common Interest Ownership Act (WUCIOA) became effective July 1, 2018 and created a new chapter in the Revised Code of Washington that governs the formation, management, and termination of “Common Interest Communities” created after July 1, 2018. What constitutes a “Common Interest Community” or “CIC” and what changes does WUCIOA bring about for CICs existing prior to and after July 1, 2018? This seminar will explore these questions, as well as the history and background leading up to the passage of WUCIOA and its impacts on you and your clients moving forward. Register here for this December 6th program – you can attend in-person or via webcast. Washington Real Estate CE Accreditation are pending.
 
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5 Tips to Help Sellers Navigate Multiple Offers 
(Source: The YPN Lounge) While inventory levels fluctuate around the country, it’s still common to receive multiple offers on listings in many areas. Serving as a trusted resource with proper advice for your sellers is just as important heading towards the holidays than ever.
 
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Keeping a Listing Tidy While Pets Live in It
(Source: REALTOR Magazine) Making sure a listing is clean when the owners have a dog or cat can be tough. Pets can leave behind messes, scratch marks, fur, dander, and odors. Home improvement website HouseLogic offers some of the following tips on how to tidy a house with pets while it’s on the market.
 
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Primary Mortgage Rates Survey
(updated every Thursday)  Source:  Freddie Mac
 
  November 21, 2018       30-yr FRM  15-Yr FRM  5/1-Yr ARM
 Average Rates  4.81%  4.24%  4.09%
 Fees & PointsHTML  0.4
 0.5
 0.3
 Margin  N/A  N/A  2.76



  November 15, 2018       30-yr FRM  15-Yr FRM  5/1-Yr ARM
 Average Rates  4.94%  4.36%  4.14%
 Fees & Points  0.5
 0.4
 0.3
 Margin  N/A  N/A  2.77



  November 8, 2018       30-yr FRM  15-Yr FRM  5/1-Yr ARM
 Average Rates  4.94%  4.33%  4.14%
 Fees & Points  0.5
 0.5
 0.3
 Margin  N/A  N/A  2.77



  November 1, 2018       30-yr FRM  15-Yr FRM  5/1-Yr ARM
 Average Rates  4.83%  4.23%  4.04%
 Fees & Points  0.5
 0.5
 0.3
 Margin  N/A  N/A  2.77



 
 UPCOMING CLASSES
 
Date Class Location CE  
29-NOV  NAR Code of Ethics Webinar 3.0 More info...
29-NOV  Water Rights & Supply Issues Kennewick 3.5 More info...
30-NOV  The Hotline Vs. The Bottom Line Langley 7.5 More info...
05-DEC NAR Code of EthicsWebinar3.0More info...
06-DECNAR Code of EthicsVancouver3.0More info...
11-DEC NAR Code of EthicsOlympia3.0More info...
13-DECNAR Code of EthicsWebinar3.0More info...
14-DECTrends Trade ShowSeattle3.0More info...
20-DECNAR Code of EthicsWebinar3.0More info...
     

More Classes →


  
COE WEBINARS 
Washington REALTORS® will host COE Webinars starting in August to assist members with completing the mandatory training. Don't wait until the last minute, though! These webinars are capped and they fill up fast...
 
THURSDAY, NOVEMBER 29TH  REGISTER
WEDNESDAY, DECEMBER 5TH REGISTER
THURSDAY, DECEMBER 13TH  REGISTER 
THURSDAY, DECEMBER 20TH  REGISTER