Many of us who have sold a home later wonder if we could have gotten a better price. Was it the right time of year to sell? Was the property advertised well? Did my realtor do everything she or he could to get me the best possible price?
That last question was the subject of a lawsuit brought by Lincoln and Leslie Beauregard against their realtor, Anna Riley. The Beauregards decided to sell their Bellevue home in November 2015. They told Ms. Riley that they would also be open to renting it at a fair price. Riley estimated that the house was worth almost $2.5 million, and the Beauregards (who later argued that she had inflated the value to convince them to list the house with her) signed a listing agreement. Three weeks later, Riley suggested that the property be listed for a maximum of $2.15 million based on her market research. The property listing went live in December 2015 at an asking price of $2.288 million with a nominal seller credit.
In the ensuing months, despite several open houses and visits, no offers came. One prospective tenant contacted Riley about renting the property but, for reasons that are not clear, Riley did not communicate this offer to her clients. The Beauregards tried lowering the price on two separate occasions and went so far as to have the property re-photographed, all to no avail. They terminated Riley’s representation in April of 2016 and sold the property for $1.85 million through another agent in August of that same year.
The Beauregards sued Riley and her brokerage in King County Superior Court, seeking damages for failure to adhere to statutory fiduciary obligations, negligence, fraudulent inducement, and consumer protection violations. They argued Riley was dilatory in her work and did not pursue their best interests by failing to return phone calls from prospective purchasers, failing to communicate prospective offers to them, valuing and listing the property at too high a price, relying upon dated photographs, and taking other actions that ultimately resulted in lowball offers. This, they said, cumulatively amounted to a breach of Riley’s statutory duty to act as their fiduciary. Riley got the case dismissed on summary judgment on the theory that the Beauregards’ claims were speculative because they had been unable to produce evidence that they would have received a better offer but for Riley’s conduct.
Last week, the Washington Court of Appeals, Division One, upheld the Superior Court’s dismissal of the case on summary judgment. Reiterating the long-held statutory and common law fiduciary duties that a realtor owes to her clients, the Court addressed the central question of whether the Beauregards had actually proven that, but for Riley’s actions, a higher bid would have been forthcoming. The Beauregards essentially argued that Riley’s fiduciary breaches could only lead to one reasonable conclusion: that these failures compounded to ultimately defeat any chance they had of getting a better price for their property.
The Court of Appeals rejected the Beauregards’ suggestion that evidence-by-inference is sufficient. Although common sense might dictate that a realtor’s failure to take certain actions will likely (and even probably) lead to lower prices, a plaintiff needs to have actual evidence that a prospective buyer that did not buy the home because of the realtor’s action or inaction in order to prevail on such a claim. In other words, an “everybody knows” rationale is not sufficient in these cases.
If you would like more information on the legal obligations of real estate agents and your rights as a buyer or seller, please contact us.
The full Court of Appeal’s decision can be found here: https://www.courts.wa.gov/opinions/pdf/774310.pdf