July 8th - 2009

LEGALBEAT: Be aware of your fiduciary duties

The buyer was led to believe that her unit would have granite countertops in the kitchen and a crawl space with a forced air heating system. As it turned out, it did not.

The buyer was led to believe that her unit would have granite countertops in the kitchen and a crawl space with a forced air heating system. As it turned out, it did not.

She had relied on the information in the feature sheet and plans when she decided to purchase the property. The feature sheet given to her was never the approved feature sheet for the project. It was a preliminary draft for discussion prepared by the listing agent, which he distributed to the other agents at the brokerage.

The builder’s website contained a different feature sheet. The draft feature sheet lists "granite countertops and glamorous kitchens" as a feature. At all relevant times, the website displayed inaccurate plans showing crawl spaces.

The judge concluded that the listing agent and buyer's agent both breached their fiduciary duty to the buyer. At all relevant times, they were acting as dual agents for the brokerage and were acting as dual agents.

The buyer's damages to replace the countertops and loss of value for the crawl space were $5,186.96. There was no proof of a loss in value of the property. However, the total commission received by the agents was larger than the proven damages. The judge ordered the brokerage and the agents to pay the buyer the total commission of $14,680.10.

Matthias v. Garibaldi Springs Development 2007 BCPC 138

MERV'S COMMENTS
Even if a buyer client can't prove actual damages for misrepresentation, the REALTORS® who breach their fiduciary duties may forfeit all of their commissions.

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