Ruling highlights danger of disclosure forms

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By Bob Aaron

If there ever were any doubts about the risks to sellers and real estate agents of using the Seller Property Information Statement (SPIS), a decision of the Ontario Court of Appeal in May would seem to have put them to rest once and for all.

In the case of Krawchuk v. Scherbak, the Ontario Court of Appeal reversed the trial decision and held the real estate agent and her employer Re/Max Sudbury Inc. jointly liable with the sellers for negligent misstatement in filling out the form.

The court ruled that the real estate agent could not rely on the disclaimers in the form and that she could not act as a mere conduit for information about the property from the seller to the buyer. The court recognized that the agent had a duty to verify the information provided by the sellers, failing which she would be held liable with them for misrepresentation.

The case began back in 2004 when Timothy and Cherese Scherbak listed their property on Boland Ave. in Sudbury with Wendy Weddell and Re/Max Sudbury.

Weddell assisted the sellers in completing the SPIS. On the form, the question, “Are you aware of any structural problems?” was answered: “NW corner settled … to the best of our knowledge the house has settled. No further problems in 17 years.”

Zoriana Krawchuk attended an open house, and with the consent of all parties Weddell became a dual agent. Krawchuck agreed to buy it, without a home inspection, for $110,100, which was $10,100 over the asking price.

After Krawchuk moved in, she discovered that the foundation walls were sinking into the ground below, resulting in the failure of proper support for the floor joists and building above.

Correcting the problem required lifting the home from its foundations, replacing the foundations and moving the house back to its original position at a cost of $197,000 – almost double what the house and land cost in the first place.

Krawchuk recovered $105,000 from her title insurer and then sued the sellers, the agent and Re/Max Sudbury for misrepresentation in failing to disclose the hidden defects. A significant component of her claim was based on the SPIS form completed by the sellers.

The form is intended to protect sellers by disclosing correct information about the property to buyers. It doesn’t always work.

The trial judge found the Scherbaks liable for negligent misrepresentation and awarded Krawchuk damages of $110,000 in addition to the $105,000 she had recovered from her title insurer. He dismissed her claims against the real estate agent and broker.

The Scherbaks appealed the judgment against them, and Krawchuk cross-appealed the dismissal of her claim against the real estate agent.

A three-judge panel of the court of appeal heard arguments last October and released its decision on May 6.

The court’s ruling noted that the “issue of primary importance” in the case was “the duty of a real estate agent to verify information provided by the vendor about the property.”

Writing for the appeal court, Justice Gloria Epstein upheld the judgment against the sellers, but also made the real estate agent equally liable for “egregious lapses” during her representation of both purchaser and vendors as dual agent.

The court wrote that the agent ought to have inquired further into the sellers’ incomplete disclosure that the foundation issues had been resolved years earlier. Failing that, she should have urged the buyer to hire a home inspector or make the offer conditional on an inspection.

Having failed to protect the buyer made the real estate agent equally liable with the sellers for damages. The court awarded half of the $110,000 in damages against the sellers and half against the real estate agent. In addition, the buyer was awarded $25,000 in costs of the appeal against the sellers and a further $25,000 in costs against the real estate agent.

The costs of the 12-day trial have not yet been resolved by the parties, but could easily range well into the hundreds of thousands of dollars for all parties involved.

Although the outcome of this case may be viewed as being restricted to its particular facts, and it did not create any new duties of real estate agents, it does emphasize how easily an experienced real estate agent can be held responsible in damages for failing to verify a seller’s statements on the SPIS form.

The Scherbaks were found liable not because their knowledge of the condition of the property was incomplete, but because they failed to disclose their full knowledge of the condition of the house. They knew that there were serious structural problems but did not disclose these facts. 

At trial, the judge found as a fact that the agent had no reason to question the truth of the information provided by the Scherbaks about the foundation of the house. Normally appeal courts do not interfere with the findings of fact by a trial judge, but in a very rare move, the Court of Appeal said that the trial judge’s conclusion that the agent had no reason to doubt the owners’ representations was “clearly wrong.”

“I appreciate,” wrote Justice Epstein, “that the trial judge’s findings of fact attract considerable deference and ought not to be interfered with absent palpable and overriding error.”

After reviewing the law on reversing findings of fact by a trial judge, Justice Epstein wrote, “The trial judge’s conclusion that Ms. Weddell had no reason to doubt the Scherbaks’ representations was ‘clearly wrong’. The only available inference is to the contrary. The circumstances were such that Ms. Weddell should have verified the accuracy of the Scherbaks’ representations about the house and she did not.”

Without actually defining the standard of care owed by a real estate agent in a case like this, the court ruled that Weddell and her company had failed to meet their obligations to their client.

In her written decision, Justice Epstein endorsed judicial comments in Alevizos v. Nirula, a 2003 Manitoba court of appeal decision, which stated that the use of SPIS forms:  “seems to present a ripe ground for litigation. Doubtless this is due in no small measure to the problems inherent in an informal ‘fill in the blank’ form which can have such serious legal consequences when problems subsequently develop in a real estate transaction. The wisdom of maintaining in use a form fraught with such inherent difficulties, exacerbated by the conflicting statements within the form concerning its purpose and effect, should be addressed by lawyers and real estate agents alike.”

The Nirula case, wrote one of the Manitoba appellate justices, “should be taken as a warning about the routine use of the form.”

The court in Krawchuk also dealt with the issue of whether the real estate agent was negligent in representing the buyer. After reviewing the governing Code of Ethics, Justice Epstein wrote, “In my opinion, in the circumstances of this case, given the requirements set out in the Code and the fact that Ms. Weddell had reason to doubt the veracity of the Scherbaks’ representations about the house, the authorities that indicate that a real estate agent’s duty to his or her client includes a duty to investigate material information about the property, are applicable.

“Whatever the standard of care, given the obvious defects in this house, Ms. Weddell had to either further verify the assurances herself or recommend, in the strongest terms, that Ms. Krawchuk get an independent inspection either before submitting an offer or by making the offer conditional on a satisfactory inspection. The failure to do either was an egregious lapse.”

A number of conclusions can be drawn from the case:

First, the court twice says that the judgment only applies in the circumstances and on the facts of this particular case. As well, it does not create any new duties on real estate agents.

But it does clarify what the obligations of an agent are and always have been when using the SPIS. Those duties include an obligation to “investigate material information” about the property, and in some circumstances to “further verify” statements made by the seller in the SPIS.

Agents cannot be mere conduits, passing on information from seller to buyer without testing it and without being responsible for misstatements.

Second, and perhaps even more important, is the appeal court’s treatment of the disclaimer in the SPIS forms. Justice Epstein quotes the disclaimers in the form (“The broker/sales representative shall not be held responsible for the accuracy of the information contained herein.”) She then proceeds to ignore the statement in the rest of the judgment, and nails both the broker and sales representative with responsibility for the accuracy of the information in the form.

Those agents who continue to use the SPIS form may, in the past, have taken some comfort from the disclaimer. In light of the treatment of the disclaimer by Ontario’s highest court – in effect totally ignoring it – the real estate community is now on notice not only that agents have to “further verify” what their clients write into the form, but also that the attempted waiver of responsibility is not worth the paper on which it is written.

Clearly, agents and sellers who continue to use the SPIS do so at their own peril. Real estate associations that continue to promote the SPIS in its current form across the country are leading their members into needless litigation.

Earlier this year, I wrote a paper for the Ontario Bar Association, analyzing in detail all 49 Ontario court decisions concerning the SPIS since 1997. A reader’s letter published in this newspaper noted that this number was not a “big deal.”

But Barry Lebow, a frequent contributor to REM and noted expert witness, tells me that for every reported case, at least another nine are settled. That would translate to 490 Ontario decisions, and another 1,500 in the rest of the country. “I am betting that my 490 number is very low,” Lebow tells me.

In my view, at least 2,000 cases in 14 years is a very big deal, especially to the parties involved.

At press time, no decision had been made on an application for leave to appeal the Krawchuk decision to the Supreme Court of Canada.

Bob Aaron is a Toronto real estate lawyer and real estate columnist for the Toronto Star. He can be reached at [email protected]. Visit his website at www.aaron.ca

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23 COMMENTS

  1. Thanks, for sharing such great content with us.
    It is necessary to go through all the points at the time of disclosure form as you have mentioned above…

  2. Alberta the law is "buyer beware". Simple as that. If the buyer waives the inspection (we have a form to indicate that they are in fact waiving it), so be it. Inspections should be mandatory and the CREA should be insisting we ensure they are done. A professional organization would take action like this.

  3. Cases like these are further proof that the consumer can only be protected by a Full Representation REALTOR who has moved forward with the times.
    With the average sale price of a home in Canada well over 300 thousand and with Mike Holmes on HGTV educating the public, we as professionals who offer Full Representation are probably at the stage when we need to move to the next stage ourselves. The award in this case could be astronomical at worst and very very expensive at least.

    As a Full Representation REALTOR shouldn't we move past the SPIS danger, to a more professional approach.
    Isn't it time we have each home we list Inspected before we put a for sale sign on the yard.
    Isn't it time one of the benefits of choosing a Full Representation REALTOR is your home is warrantied mechanically for 1 year and structurally for 3 years.
    Isn't it time even the price of the home is established by an official appraisal prior to list.
    Isn't it time the Public becomes aware of what a Full Representation REALTOR really does for you and the legal and financial obligations they choose to accept with every contract they write.

    Finally it's not the amount of the reward, it's the fact your name is tarnished often beyond repair in your community when something like this hits the press. This REALTORs' name is clearly shown even in this article and you can be sure the local Sudbury paper would have open ears if the buyer was to have contacted them. The Brokerage would often be painted with the same brush and all the REALTORS in that office faced with their own brands being endangered.

  4. [from the article above] The court’s ruling noted that the “issue of primary importance” in the case was “the duty of a real estate agent to verify information provided by the vendor about the property.”

    The dominant word in the quote: VERIFY. Just a question: Can anyone suggest exactly how a Realtor(r) would go about "verifying" this situation and acquire written documentation (because that would definitely be needed), short of hiring an independent engineering company, paid for mutually by the brokerage and the listing agent? and/or perhaps shared costs with the Seller.

    Where and when does the responsibility a listing brokerage and/or its salespeople have to not only discover a problem, but "verify" it in writing? This would seem to be an extension of "making sure" the Seller tells the truth. Exactly how would one control that?

    I am just curious how a Realtor(r) is required to go to such in-depth research and reporting, and to ask exactly to what lengths is one required to go? Where does the responsibility end? And this is supported by the first court finding apparently. But then villified by the appeal process.

    We ask the appropriate questions, reasonably presume we got correct answers – now we should pay for engineering reports ourselves, hire an independent lawyer to support our findings in order to protect our own position? (and the public often thinks we don't "earn our keep?") Where does it end? added to the "mere listing" responsibility factor put upon any Realtor(r) taking such a listing ~ which is no different from the responsibility currently in place for ALL listings taken by ALL Realtors(r).

    It is interesting that this topic has only now surfaced in discussions, as the result of the "mere listing" process becoming available to the public.

    In thirty years I have never met a colleague, to the best of my knowledge, who operates a brokerage using this system of investigatory procedures, neither have I met a salesperson who has gone to these lengths of practice. Can anyone speak to this?

    Can someone say: overzealous? perhaps . . . yes, we can walk away from the listing. That apparently would be the cheaper of the two choices, using this discussion as the basis on which to draw such a conclusion.

    It would perhaps mean that the real estate business should not be "allowed" to take listings at all, but rather have a system put in place where all sellers just dump their information into a bin, and have all Realtors(r) only represent buyers only, and then set about putting in place the investigatory procedure.

    Perhaps a thought well ahead of its time. We never know what the future holds… (said tongue in cheek). But then we thought the book 1984 was outrageous also… with cameras on every corner and in most unusual places.

    Carolyne L http://www.Carolyne.com

    • Hi Carolyne:

      The SPIS could just as easily stand for "Selling Person's Indecisive Statements".

      It's more sinister than cameras on every corner; for better or worse, there are satellite cameras in outer space potentially spying on us right now. This is not paranoia speaking; it is reality.

      Selling real estate is a lot like selling used vehicles; realtors are contracted to sell peoples' used stuff / property, not knowing what has been changed up illegaly or has been covered up / bondo'd over in difficult to observe areas. Even a home inspector cannot be held responsible for "latent" defects.

      Likewise, selling brand new homes is a crap-shoot. As a former conciliator with TARION, I routinely had to deal with building code violations that had been missed / passed by municipal building inspectors. Quality control issues were quite another matter. Contractual disputes raged continuously.

      Nothing is perfect.

      The problem with the real estate business is this: This is primarily a business wherein a smooth-talking, charismatic, money-hungry hustler with an iffy moral code, combined with no previous experience in any of the disparate attendant areas of construction, mechanical systems, or the legal system etc., can make a lot of money impressing the uninformed public, whereas, an all-around experienced, knowledgeable, mature person with an upright moral character, but who is not money-hungry, who is not a member of the rat-race club, may not make a lot of money. This is one of those businesses wherein the personal requirements for financial success seems to be topsy-turvy. Hustle trumps knowledge and character. Self promotion / self marketing trumps the reality of understated professionalism.

      The government is once again trying to make a 'system' run perfectly, all the while ignoring the real problems, being the unqualified vehicles / bodies which biologically support the psychology / brains (talking heads) that get into this business, who ultimately contribute to / create the problems in the first place.

      It seems that some of (much of?) the public wants to be lied to, to be made to feel good about pie-in-the-sky potential money to be gained by hiring this or that representative. Too many of us oblige.

      How else does one account for half of all listings expiring unsold during the initial listing periods?

      It's called "Buying the listing", as we all know.

      Where is the professionalism in that scenario?

      Whose interests are being served 50%, or more, of the time?

      I am sure that I will get plenty of flack for this commentary, but I tend to see things from the paying consumer's point of view, ignorant / lazy as many consumers may be.

      Government regulators are missing the 'trees' for the forest,

      Regards,

      Brian

    • Well stated, Brian.
      Don't get me started on the builder issues. I bought one of their "contrivances" that had issues that were not Tarion-protected, city-protected, inspection-protected, not closing lawyer-protected, even so he lied outrightly, in conversations and in writing, saying don't worry about it, it is all covered under TItle Insurance. Tarion disagreed. Title Insurance disagreed. Said it was a lawyer problem and that I had been given bad advice. C'est la vie! Even other lawyers said I had been given bad advice. We can't even protect ourselves, and we are in the business. How on earth are we supposed to "validate" what a seller states? Answer: make work project for lawyers.

      Cordially,
      Carolyne L http://www.Carolyne.com

  5. What would have been the result if there was no SPIS? The Sales Rep would have been liable for everything, including the Seller lies.. Any Seller who deliberatly lies on the SPIS (ie known sewer back-ups and known further settting as per the court case) would immediately point their finger at the Sales Rep and boldly state "but I told her everything – didn't she tell the Buyer?" if there was no SPIS.

    Mr. Aaron needs to find another case to convince me that the SPIS is dangerous. This case convinced me that unscrupulous Sellers should beware if you don't tell the truth.

    When I first got into real estate over 26 years ago, a sales rep called me to make an appointment on one of my listings. I called him back to confirm the appt. and said "by the way – the SW corner of the basement leaks in the spring". This more "experienced" rep got mad and told me to never tell him about anything wrong in my properties again. When I asked why, his response was "because then I am liable to pass on the information and that is your problem".

    So – I repeat – thanks for the SPIS because that's where Sellers and Sales Reps have proof of disclosure – I don't want to see us go back to the "old days".

    • FULLY agree with you Roberta. There is absolutely nothing "dangerous" about the use of SPIS form, in fact I think they're great and fully endorse their use. They are dangerous only if the truth is deliberately masked.

  6. Wow, hot topic…

    For me I found this article of interest, it led me to review all comments made & the case it’s self. http://www.canlii.org/en/on/onca/doc/2011/2011onc

    A dry read, based on FACTS!

    After my review – these are my thoughts;

    1) Disclosure – it’s of the most importance. (By sellers & to buyers). Informed decisions can then be made. Clients can then be properly counselled by the professional Realtor® – hence us earning our recognition & value.

    2) Buyer representatives need to be aware; this statement also relates to hands off full commission Realtors® and to the “Mere Posting”. With the competition bureau ruling related to the listing Realtor® is taking hands off approach to these listings & immediate cash in the pocket – You will have to ask Questions & get similar types of forms completed to protect your Buyer.

    3) These forms should be mandatory. Completed by the seller with the only counsel from the listing Realtor® being full accurate disclosure needed & as sellers you may want to seek legal counsel.

    While I understand the majority of us learn everyday & work to improve our abilities. I realize that mistakes are, can & will be made – I’ve made them myself. When I first started in this business, the broker whom held my licence said that any mistake can be corrected with a piece of paper and that statement is so true. Earn up to it, correct it… Don’t let it fester into the un-wanted that will case you to lose sleep or end up in court.

    In stating that my apologies for beating the Professional Realtor® in item (2) that is very hands on. We have all run into those whom are not.

    Below is the conclusion from the case.

    VI. CONCLUSION
    [189] The Scherbaks knew that the foundation of the house was seriously compromised and that there were ongoing plumbing problems. The Scherbaks made incomplete disclosure about these problems to Ms. Krawchuk. Ms. Weddell took no steps to verify the accuracy of the information supplied by the Scherbaks or to otherwise protect Ms. Krawchuk from the adverse consequences of this inaccurate information. Misinformed by the Scherbaks and badly served by Ms. Weddell, Ms. Krawchuk purchased a house with serious latent defects. She was forced to move out while she repaired her home at considerable expense.
    [190] My conclusion that Ms. Weddell is liable in negligence to Ms. Krawchuk renders her a concurrent tortfeasor with the Scherbaks. The Scherbaks and the real estate respondents are therefore jointly and severally liable to Ms. Krawchuk. In the circumstances, I would apportion fault at 50% to the Scherbaks and 50% to the real estate respondents

  7. There goes Mr. Aaron running down the SPIS again!
    This case isn't centered around the SPIS but the fact that the seller lied and the sales representative didn't do her job.
    If the seller had put in the SPIS that, Yes, there is a structural problem AND if the sales representative had of insisted on the buyer doing a home inspection and/or a structural assessment, there wouldn't have been a lawsuit.
    It's true that the deal probably wouldn't have gone through but DISCLOSE! DISCLOSE! DISCLOSE!
    I'd rather lose a commission than my reputation and lots of $$$$$$!
    Obviously, I'm in favour of an SPIS!

    • Helen, I don't know what's with Mr. Aaron but he's way off on this one. I am in favour of the use of SPIS forms 100%.

  8. I think the case was handled exactly the way it should have been but I wonder why the buyer paid over asking? Were there more offers!! I guess not. SPIS IS not a must with different realestate board and is not required to provide in TREB. I think TREB should bring it on. A proper and careful use and disclosure and save all the parties. I have sold homes when I was dual agent but always gave disclosures and did inspections.

  9. This case shows the biggest growth in Real Estate law is after the sale litigation. As this case and other cases over the last few years proves simple caveat emptor is not sufficient. The courts are ruling in favor of the buyer and coming down hard on sellers and their agent failure to disclose. In a hot market this squarely puts the onus on the listing agent to get the seller to spend the $ and get an engineering report/inspection done before the home hits the market.

  10. I agree with Mr. Hicks, Mr. Olson and Mr. Hawker completely. Had the SPIS not been used, there still would have been a duty on the part of the seller, and the listing salesperson, to disclose the defect. Give the potential seriousness of the defect, the listing salesperson should certainly have flagged the issue and dealt with it, by suggesting the sellers get a pre-listing home inspection. And, given the multiple representation scenario, there certainly was a duty to the buyer to suggest an inspection given the existence of the defect and the notes about it in the SPIS. In fact, it could be argued that the SPIS, in the hands of a more skilled, rigorous agent, could (should) have been the instrument that alerted everyone to the problem so that it could be dealt with in advance. The problem was certainly not with the form but with the questionable actions of the sellers and the representative. Don't you think?

  11. Mr. Aaron's article did not cover some significant aspects of the case, but it can be found on canlii and is worth reading. I have to agree with him.

    The appeals court judge overruled the trial judge and found the sellers negligently misrepresentated because there were other facts known about the settling but not disclosed. And,

    Against the REALTOR for failure to discover material facts – given her observed evidence. The judge reiterated warnings from two other judges about the use of the SPIS/PCS which all should consider carefully:

    "seems to present a ripe ground for litigation. Doubtless this is due in no small measure to the problems inherent in an informal “fill in the blank” form which can have such serious legal consequences when problems subsequently develop in a real estate transaction. The wisdom of maintaining in use a form fraught with such inherent difficulties, exacerbated by the conflicting statements within the form concerning its purpose and effect, should be addressed by lawyers and real estate agents alike".

    AND

    "This judgment should, in my view, be taken as a warning about the routine use of the PCS. The purchase and sale of a home is for many people the most significant business transaction they will ever enter into. Representations as to the condition of the property are inevitably going to be requested and given. I do not believe that these concerns are ever going to be safely dealt with by filling in the blanks on a short form carried in the real estate agent’s briefcase with his or her other supplies."

  12. I agree with Mr. Hawker's stance which may be best summed up in his final sentence…

    "…if as professionals we don’t ask these questions for fear of the answers is that not cause to be in court as well."

    The obvious error by the dual agent is not insisting on an inspection by a skilled and truly impartial home inspector. This would have saved the day for all parties.

    • But bear in mind the forms the home inspector uses, negate any responsibility for errors he, himself, might make, making him liable only to return the cost of the inspection, typically.

      So it is possible, in this scenario, the responsibility would still flow back to the Realtor apparently, who would need to be in a position to "verify" the home inspector's findings, were the "situation" to end up in court. Because since nothing had happened in recent years, at the property, the home inspector likely would not even have addressed the issue possibly.

      Sadly, due to the findings of the appeal, it would be safe to think the Realtor's(r) E & O Insurance doesn't apply, either, quite likely.

      Just thinking out loud…

      Carolyne L http://www.Carolyne.com

  13. My only question is, would the outcome have been any different had the SPIS form not been used? It seems to me there were a number of lapses in judgement made by both the sellers and the listing salesperson quite apart from the use of an SPIS.

    – there was a latent defect which was not disclosed by the seller
    – the listing salesperson didn't take the proper steps to discover and disclose (e.g. if the settling of the foundation was visible, she could have suggested in writing to the sellers that they obtain a pre-listing home inspection report or engineer's report). At the very least, she could have explained in writing to her sellers the importance of disclosing latent defects, thus offering her seller clients real professional advice and at the same time, creating some sort of paper trail for herself.
    – if the sellers, once aware of the importance of disclosing a latent defect, still refused to disclose the defect (e.g. by way of a clause in any subsequent offer), then the salesperson could and should have refused the listing
    – the listing salesperson (in my opinion) showed a lapse in judgement by offering client representation to buyers she simply met at an open house. She already had a fiduciary duty to her sellers and should have offered the buyer customer service only
    – given that the listing salesperson did offer the buyer client representation, she definitely should have suggested they include a home inspection condition, or if they were in an offer competition and couldn't include conditions in order to win the competition, she should have suggested in writing that the buyers have a home inspection conducted prior to making an offer.

    I don't see how any of these mistakes are the direct result of using an SPIS form. They may be compounded by the use of the form, but it seems to me that the sellers and listing salesperson could have been held liable for the undisclosed latent defects of the house even if the SPIS hadn't been used. And, furthermore, the salesperson's mistake of failing to offer decent representation to the buyer seems to me to have nothing whatsoever to do with the SPIS. In other words, I don't think the SPIS is the real story here.

    Am I wrong about this?

    Tony

    • You are absolutly right Tony, the suggestion by Mr. Aaron of getting rid of the SPIS is "throwing the baby out with the bath water" reactionism. It is not the real story nor the right attitude.

      BTW, this attitude will surely put us further on the path to "no service, low or no commission", internet informational only MLS services.

    • "given that the listing salesperson did offer the buyer client representation, she definitely should have suggested they include a home inspection condition, or if they were in an offer competition and couldn’t include conditions in order to win the competition, she should have suggested in writing that the buyers have a home inspection conducted prior to making an offer."

      Listing rep did. The judicial response as to why it was/may have been/ removed is not at all flattering to any buyer representative whether it is dual agency or not.

  14. It strikes me that the recommendations are not to ask these important questions which goes against everything I stand for. As a 19 year professional in Canmore my clients want all of my knowledge and expertise working for them, it seems to me that this article and perhaps the judges findings suggest it is better not to ask these questions of a seller but could the buyer could still be in the same situation if these questions we not asked. I have always felt that more information was better and I still feel this way. My problem with all of this is similar to the Boards and AREA's position on dealing with GST (specifically vacation accommodation), they seem to want to cater to the lowest common denominator of our industry by saying, since you are not smart enough as a listing agent to demand a seller gets an engineer's report on a corner of a house that has moved over time that we should not ask these questions for fear of being in court. I would suggest that education and doing ones job correctly should the measure where if the seller's agent would have sought an engineer's report prior to determining the market value for the seller and when acting for the buyer, demanded to see such a report or make it a specific condition or document the agents strong suggestion to include this suggestion of such a condition. There has been much press about making sure we act prudently for our clients and document steps / conditions we suggest that clients reject, this or higher is where our industry needs to set the bar, NOT create a business framework for the weak, unskilled and fostering disregard for the protection of our clients. If this is too onerous for some agents then they should look for a new career as I expect the public will continue to want as much information as possible and if as professionals we don't ask these questions for fear of the answers is that not cause to be in court as well.

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