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HORIIKE V. COLDWELL BANKER

HORIIKE V. COLDWELL BANKER-WHAT DOES IT MEAN FOR THE FUTURE OF DUAL AGENCY?

On November 21, 2016 the California Supreme Court announced the long awaited decision in Horiike v. Coldwell Banker. Though there was grave concern the Court might use the opportunity to seriously impair California's dual agency law allowing brokers to represent both buyers and sellers in real estate transactions, the decision was decided on the narrow issue of whether an associate agent working for the seller owes the same fiduciary duty to the buyer that a broker owes to both parties. The court held the associate agent owes the same fiduciary duty to the buyer as the broker owes to the buyer even though the associate agent is representing only the seller in the transaction.

This case arises from the sale of a property in Malibu, California. The property was originally listed by Chris Cortazzo, a salesperson in the Malibu West office of Coldwell Banker. As Cortazzo prepared to list the property, he obtained public record information from the tax assessor's office, which stated that the property's living area was 9,434 square feet, and a copy of the residence's building permit, which described a single-family residence of 9,224 square feet, a guest house of 746 square feet, a garage of 1,080 square feet, and a basement of unspecified area. When Cortazzo listed the property on the MLS in September 2006, however, the listing stated that the property "offers approximately 15,000 square feet of living areas." Cortazzo also prepared and distributed a flyer making the same representation about the property's square footage.

In early 2007, a couple working with another Coldwell Banker salesperson made an offer to purchase the property. By a handwritten note in the disclosures he prepared, Cortazzo informed the couple that Coldwell Banker did not "guarantee or warrant" the square footage of the residence, and he advised them "to hire a qualified specialist to verify the square footage." When the couple requested documentation of the square footage, Cortazzo gave them, through the salesperson, a letter from the architect of the residence stating that "[t]he size of the house, as defined by the current Malibu building department ordinance is approximately 15,000 square feet." In a cover note, however, Cortazzo again cautioned them that they should "hire a qualified specialist to verify the square footage." The couple requested an extension of time to inspect the property, which the trust refused to grant. In March, the couple canceled the transaction.

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