Monthly Archives: November 2012

Expert Witness: Lending a Hand in Real Estate Cases

“Do I need an expert witness in my real estate case?” This is an important question, and its answer may surprise you. It is simply, “Yes.”

As in many legal cases, the facts in a civil real estate case can be mired in the standards and practices of the industry. It is vital for the success of a real estate case that you and your clients can successfully navigate these facts with confidence.

In most civil real estate cases, there is an element of fraud, fraudulent inducement, misrepresentation, or a number of other violations of Chapter 475, Florida Statutes at issue. The most common of these include violations of the statutory duties required of a transactional broker. For example, Section 475.278(2)(c), Florida Statutes, requires brokers to use skill, care and due diligence in all transactions. In these cases, the most important testimony given by an expert relates to a broker’s duties as set forth in Section 475.278, Florida Statutes. This chapter clearly defines the duties of a broker for the protection of the consumers.

Florida law has a clear presumption in favor of finding that a transactional brokerage relationship exists between a broker and a client, unless otherwise provided in writing at the onset of any real estate transaction. A Transaction Broker Relationship is defined by statute as providing a limited form of representation to a buyer, a seller, or both in a real estate transaction but does not represent either in a fiduciary capacity or as a single agent. Section 475.278(1), Florida Statutes. The duties of the real estate licensee in this limited form of representation include the following:

(a) Dealing honestly and fairly;

(b) Accounting for all funds;

(c) Using skill, care, and diligence in the transaction;

(d) Disclosing all known facts that materially affect the value of residential real property and are not readily observable to the buyer;

(e) Resenting all offers and counteroffers in a timely manner, unless a party has previously directed the licensee otherwise in writing;

(f) Limited confidentiality, unless waived in writing by a party. This limited confidentiality will prevent disclosure that the seller will accept a price less than the asking or listed price, that the buyer will pay a price greater than the price submitted in a written offer, of the motivation of any party for selling or buying property, that a seller or buyer will agree to financing terms other than those offered, or of any other information requested by a party to remain confidential.

An expert witness can be effective in clarifying these standards for the court as, quite often, the broker hides information that affects the value of real estate to fraudulently induce a contract. In addition, many brokers have poor recordkeeping habits and do not comply with paragraph (a) of this section: dealing fairly an honestly with all parties. In addition to the standards of the industry, realtors must comply with the National Association of Realtors Code of Ethics.

Our firm employs Jason Steele, a non-lawyer expert on real estate matters that can provide the testimony and support needed in real estate litigation. As the former Director of the Division of Real Estate within the Department of Business and Professional Regulation, Jason served eight years on the Florida Real Estate Commission and sat as a Quasi Judicial official on more than 3,000 disciplinary cases. In addition, he is a former senior real estate instructor for the Florida Association of Realtors and has 38 years of real estate experience.

If our firm can assist you with expert testimony and case development on a real estate matter, please do not hesitate to contact our offices.