Yesterday the California Supreme Court ruled on dual agency. Dual agency is when a broker represents both the buyer and the seller in the same transaction.
In Horiike vs. Coldwell Banker, the dispute arose from a discrepancy in the listed square footage and the actual square footage. The seller had represented that the home in Malibu was 15,000 square feet when permits showed it less than 10,000. Apparently, the garage and basement were included in the seller’s calculation of the total living area, which as a rule is a no-no. The listing agent, was apparently aware of the possible discrepancy. The court ruled that because Coldwell Banker was the broker for both agents, the seller’s agent should have disclosed this possibility to the buyer. The court reiterated that it’s an agent’s duty to “Disclose any material fact to the buyer that affects the value or desirability of the property that are not known to or within the diligent observation of the parties”. Hello? This is a requirement not only in dual agency but in every transaction, even when each party has their own representation. It’s literally in the first document signed by the seller when a listing is taken and again when a buyer makes an offer. The document, Disclosure Regarding Real Estate Agency Relationship uses the exact wording the court used. In fact, one would have to assume the court inserted the language directly from the California Association of Realtors document.
In the case before the court, the Association of Realtors argued that because the buyer had their own agent, the listing agent had a “unique” responsibility to the seller having been the listing agent first. Why would they do this you ask?
The Association’s supposition was that even though Coldwell Banker had a dual agency, since the listing agent was not representing the buyer, the listing agent should have loyalty and a fiduciary obligation to the seller first.
What makes the Horiike case unique is not this idea that all material facts need be disclosed in dual agency because that is always the case and the agent really should have disclosed the need to verify square footage regardless of agency since he was aware of a possible discrepancy. What’s significant is that the decision serves as a reminder that while there may be two different licensees (agents) in a dual agency transaction, the fact they are under the same brokerage as was the case in Horiike, means the listing agent must behave the same as if they were representing the buyer themselves.
Let me explain the distinction. When I represent a buyer and a seller in a transaction, I always make extra sure anything I know or suspect about the property is brought to the attention of the buyer. And if a seller tells me something in confidence, if I feel my buyer needs to know this fact because it may affect the way they feel about then property, I tell the seller we need to tell the buyer. But some disclosures aren’t always clear. For example, earlier this year I had a dual agency and I noticed that the windows in the living room had a weird orange powder or film in between the panes of glass. The seller said, it had been that way when they bought the home from the previous owner. I suspected this was a symptom of a problem with the window seal. So, I made a point of telling my buyer that the windows may have a problem that wasn’t necessarily just cosmetic. You would think that of course Tim would want to protect the buyer since he was representing both buyer and seller and you’d be right, I watch out for my clients. But what if I wasn’t representing the buyer and they had their own broker? Would I have gone to the lengths of disclosure of suspicions if I were not also representing the buyer? The C.A.R. contract is quite clear, it’s the buyer’s responsibility to investigate. The seller has a duty to disclose and an agent to observe. What would I tell the buyer, I saw something that could be something and maybe you want to investigate? At what point, does that breach my fiduciary responsibility to the seller to represent their best interests? I mean I’m no window expert and it’s my duty to protect the seller not cause fear in the buyer on speculation on something I have no real knowledge of which could damage the seller I represent.
When I am representing both buyer and seller however, my role shifts to that of facilitator and I tell my sellers this because they may or may not be willing to allow me to shift into that new role. They may want me to only represent them (contact Tim here if you want more information about my services). In the past, if a seller wants this, I get my manager or another agent from my team to assist in representing the buyer. It keeps things neutral. This however is the crux of the Horiike ruling: That even if I get another agent from my office or even another office of my broker, my role changes. I am a dual agent.
Before I continue it’s worth mentioning that the court’s decision in this case was interpreted very narrowly and to the specifics of this case, so what follows is more of a potential interpretation should this ruling be interpreted differently somewhere down the road.
In Horiike, the court ruled that in this case, that the agency relationship specifically for the listing agent changes when the same brokerage is on both sides of the transaction, even though buyer has their own agent representing them. Thus it could be inferred that the distinction is that the listing agent’s responsibility shifts to that of dual agent when in any transaction with another agent from the same brokerage. The listing agent must act as if they are representing both the buyer and the seller even though there’s a buyer’s agent. It’s as if the buyer’s agent doesn’t exist. It’s a subtle difference but should a future case interpret Horiike in this way, it is a difference with implications potentially huge for the real estate business.
In a world where there are brokerages comprised of hundreds or even thousands of agents, this potentially creates a real conundrum for sellers. Again I want to caution that the following is not the interpretation of the judge in this case, rather a hypothetical “what if” should a future case be interpreted far more broadly than Horiike vs. Coldwell Banker was. In this example, let’s say a seller listing a property decides it’s not such a good idea to list with a large brokerage. A large brokerage with lots of agents under a broker could mean there’s a greater likelihood that their agent could be forced into a dual agent role, even though there are two agents in the transaction. While this is still a possibility in a small boutique brokerage, clearly with the larger brokerage, there’s a greater chance a seller loses their agent’s independence. Moreover, the seller would have to decline an offer if they are not willing to allow dual agency. And what does that mean for a buyer? If my agent is with a large brokerage and I want to see a property listed by the same brokerage and it turns out the seller is unwilling to entertain an offer from that brokerage because they don’t want a dual agency, that buyer can’t exactly go to another broker to write the offer over. This is because the agent originating an offer for a buyer, is the only one entitled to the commission.
This is called “Procuring Cause.” If I’m a buyer, who’s going to write my offer if they won’t be entitled to a commission? So, the Horiike ruling is potentially not without consequence and could lead to a move towards smaller independent offices and away from the huge Coldwell Banker, Keller Williams and Century 21’s of the world. Now personally, I don’t believe that dual agency is ominous and in fact I do it a few times in any given year to the benefit of both my buyers and sellers. That said, I guess this is another good reason for an agent to be with a boutique brokerage, like I am (Learn more about Tim here).
This is fundamentally what escrow does. Unlike many states where closing is done at a table with lawyers, buyers and seller sitting across from one another, California relies on an escrow service to conduct and facilitate the transaction. Escrow generally runs smoothly so most people don’t give it much thought, but that doesn’t mean it isn’t rife with potential problems.
Huh? That’s right, wired funds must pass through the Federal Reserve and they close around 2 pm Pacific. So the deed is recorded and the buyer is the legal owner and ready to take possession of their new property, but the money hasn’t been deposited into the seller’s account yet. This just happened to me and making matters worse, it was the last day of the month which also happened to be a Friday. So not only did the buyer get the property before the seller received their proceeds funds, the seller had to wait until the following Monday to get their money! And lest you think this rarely happens you’d be mistaken, it happens quite often. Unlike a closing table where the keys are exchanged for the money, escrow always and by definition has to set up the recording and then record the transfer all before seller gets their money. In the transaction I just closed, the seller was livid that the buyer was going to have the keys before they had their money and wanted me to hold the keys and not give them to the buyer, even though the property had recorded and the buyer officially owned it! Thankfully in that example, escrow was able to rush the file through and beat the wire cutoff with just minutes to spare. That didn’t stop the seller from giving me an earful however.



By any measure this is good news for homeowners and while growing more expensive, hopeful news for home buyers. The question on everyone’s minds of course is, can it continue?










When I met with prospective buyers I would tell them, this is the best and only one person can own the best. Many would be buyers hemmed and hawed. “Sell it for money like the comps down the street,” they would say. I explained that quality costs and only one can own the best. Believe it or not, I’ve I actually sold this home three times. When it was new I told friends of mine, it was the best and they went for it. They put it tons of upgrades and spared no expense. The second owners paid a substantial premium for that home at a time when no one was buying anything. The third owners did the same and in each case they gladly paid the premium and I know for a fact that if you ask any of them they would tell you, it was worth every penny. The old sales master Zig Ziglar used to say, “It’s better to apologize for the price once, than the quality forever.” As many of you who follow my writings and visit my
or Googie furniture, Eames etc. style, the house looks incredible and people jump at it, fighting over it even. Same is true for any architectural style. I recently saw a Craftsman style applied to a basic tract house single story. The owner had sandblasted the eaves and painted them brown. The siding and stucco were an olive color, the windows had been done in with the red clad on the outside, wood on the inside, a very expensive window, yet the package was so convincing that you’d think it was a Greene and Greene in Pasadena somewhere. The seller wanted a 30% premium. A side bar on that home: It didn’t sell for the premium the owners wanted, but not because there weren’t takers, but because the owners found that they could make a small fortune renting it on AirBnB because the style was so cool. This is a new and unique time we find ourselves in isn’t it?


(sellers take note, fix your place up and buyers will want it way more…) What did I do? New floors, baseboards, doors, window sills and wainscot; built ins, carpet and paint, kitchen cabinets, counters and appliances, lighting. Well the lighting isn’t done yet, but you get the idea. Mostly first floor. I think Shakespeare himself would have a hard time defining my experience. Romance, tragedy, comedy… Because of this endeavor, I have several new appreciations and observations to share.
Are you really going to bring back a contractor later once you realize that the old ones look terrible when compared to the new ones? Moreover, that it will never be cheaper than right there and then? The cabinet man that was working on my kitchen got a call from the job he’d just finished. The job was in Beverly Hills which is a pain to get to even when you live in Beverly Hills. The owner had been unable to decide if he wanted dividers in his kitchen drawers. The job is otherwise done when of course he realizes that he needs dividers. So he calls the cabinet man who tells him it will cost $800. “$800???” the owner screams, for dividers? The cabinet man explains that since he is no longer on the job, he has to come and measure which means 1.5 hours in the car each way. Then has to get the material, cut it, drive back to install on another day so that’s three days. Had he been asked while he was there anyway, maybe $150. I hadn’t planned on putting in new entry doors, but once the trim and casing went in, I realized that the old door looked like dreck and I needed new doors. I got the doors on sale, just $1,800. But then I needed hardware: $750. Then they had to be hung, never cheaper since the guy was there already, there’s another several hundred and oh yeah they need to be painted and stained, $800 more. The decision in was never cheaper but wasn’t cheap: total cost $4,000… uh, that wasn’t in the budget… Those types of questions and opportunities arise throughout the entire process. Delay and you’ll pay way more down the line or you just live with it.
In other words, mega mansions in 7, 8 and 9 figure range. One such mansion for example, took up an entire city block of Brentwood! In these homes, a cleaning crew sweeps and dusts behind the workers. No worker is setting a paint thinner can on the new carpet and they don’t just brush sawdust onto your new wood floors. If a miter joint is off by a quarter inch, it gets torn out and redone. On most remodel budgets however, that quarter inch gets you a shrug of the shoulders and a “Well no material is perfect,” kind of talk. Disappointment is part of remodeling and perfection simply doesn’t exist, no matter ow talented your contractor. Oh and your floors get scratched, things get broken, paint gets splattered, not everything fits together as it should and no matter how much time you thought it was going to take, it takes significantly longer.
Failure to do this can lead to flooding and backed up sewer lines. Wait too long and the hydro will no longer clear out the debris and this means re-piping. When my mom recently replaced her driveway I suggested that she have a plumber run a camera down the sewer pipe to determine if it was clear since it would never be easier to repair than when the driveway was torn up. It cost about $150 to get a DVD made with the camera in the line and don’t ya know? The tree roots invaded the line and the connection to the City main was broken! That ended up being an $8,000 repair, at least the driveway didn’t have to be torn up and re-poured. By the way, do you now whose responsibility it is to repair the connection of a home’s sewer line to the sewer main? The home owner, even though it is under the street and past the property line.
They are coming to the United States and buying premium properties and paying premium prices because they understand what we in America often forget: There is no better place in the world to live and no safer place to invest than right here in the good ‘ol U.S. of A. So that’s my stocking stuffer of 2015, real estate is going to keep rising. It will go up, perhaps drop only to go up again, because that is what it does, what it’s always done and what it will always do. Like Mark Twain so famously said, “Buy real estate because God ain’t makin’ anymore.” Let me leave you with this saying you’ll find at the bottom of every email I send: “You don’t wait to buy real estate, you buy real estate and wait.” And that, is some good holiday cheer indeed, wouldn’t you agree?