Many real estate agents believe that, so long as they do not intentionally mislead buyers and are upfront with disclaimers about information they are providing or representations they are making, the disclaimers protect them. As always, its not that simple.
Misleading and deceptive conduct has a very broad applicability. Rather than look at particular actions or circumstances, Courts look at the "overall impression" of an agent's conduct. Two examples of scenarios where agents may be liable for misleading and deceptive conduct are:
No intent is required to be found guilty. The buyer doesn't even need to actually be mislead or deceived! The only thing that matters is whether, tested objectively, the conduct was misleading or deceptive.
Take the scenario that an agent presents the buyer with a contract and says words to the effect "I am not a lawyer and cannot give you legal advice. Its also important you be aware that I may be conflicted as I have certain duties I owe to the seller."
If, after saying that, the agent assists the buyer in completing the contract (including advising on the meaning and effect of certain terms), this may be interpreted as providing advice and making representations the buyer may assume they can rely on and leave you open to liability.
So what can you do?
Here are some handy tips to avoid some common pitfalls:
We're here to help
If you find yourself in a situation where the buyer is asking for assistance or advice in relation to the contract, we'd love to help them (and save you potential legal liability).
If you have any doubts regarding any of these issues, get in contact with us.