Q: I have some concerns about what my buyer’s agent said to me in regard to the purchase of a home, and they also referred me to a careless inspector. After the closing, I found many defects and deficiencies.
The inspector claims he only has liability for the costs of the inspection. The real estate agent says I have released any claims against his company and him in a multitude of agreements that I have signed. What do you think?
A: While I have not reviewed your particular agreements, generally speaking, real estate firms, with the help of their lawyers, have placed disclaimer clauses, indemnification clauses, and outright releases and waivers of liability clauses in their buyer’s agency agreement, the purchase agreement itself, and even in closing documents, where they request the purchaser to release any claims that they have against the real estate company and their agents regarding the condition of the home, notwithstanding what they have said or not said about the home, and whether or not they were negligent.
They use these releases in an effort to categorically deny any liability against them no matter what!
I would not be able to provide a legal opinion without examining your particular agreements, but they tend to be relatively standard throughout the industry, so you may be looking at an uphill battle here.
It is now more imperative than ever that before a person signs any agreement with a real estate agent, and before even beginning their search for a home, they engage a knowledgeable real estate attorney to negotiate the terms, including a demand that these invasive exculpatory clauses be removed, or that you will seek another real estate agent who is willing to take on a reasonable level of responsibility and not to include these onerous and, some would say, unconscionable provisions.
Having an attorney only for closing is clearly not enough these days if you wish to hold a real estate agent responsible for discharging their fiduciary duties to you.
The idea of “buyer beware” applies not only to the home and the seller but to the real estate agents involved.