Last Update: 04/18/16
In Florida, if you have been the victim of an unscrupulous real estate agent or broker, you can do two things (assuming that talking with the real estate agent didn’t get you anywhere): one, you can file an official complaint with Florida Real Estate Commission; and second, you can file a civil lawsuit seeking damages for the losses that you have incurred as a result of the agent or realtor’s wrongdoing.
What is a Fraud Claim Involving a Real Estate Agent or Broker in Florida?
Fraud involves an intentional misrepresentation where the victim, for example, relies upon a statement (written and/or oral) as being true and accurate resulting in the victim being hurt in some serious way.
Fraud can involve lying and not telling the truth about something. Fraud can also involve remaining silent when you have a duty to speak up.
Fraud involving a real estate agent or real estate broker means that there was an intent on the part of the real estate professional to deceive in some way. Maybe the agent or broker makes a statement to the victim that they know not to be true. Or maybe they kept their mouths shut about something that they should report to the victim (i.e. the existence of mold or an illegal addition or illegal conversion).
Other examples include:
- Failure to reveal a change in value of the property (e.g., lower value to a buyer)
- Failure to reveal the real square footage of a home to the buyers
- Failure to reveal problems with the community or development to investors
- Failure to reveal discrepancies in appraisals on the property
- Failure to reveal hidden problems in the property (termites, foundation issues, history of flooding, etc.)
What Happens When You File a Complaint With FREC?
When a complaint is filed with the Florida Real Estate Commission (FREC), the claim is reviewed by the Florida Department of Business and Professional Regulation (DBPR) and, if the DBPR finds that there has been a violation of the Florida Statutes (Section 475), then an investigation will begin.
If fraud is found to have been committed by a real estate agent or broker, then under Florida Statute 475.25, the real estate agent may face punishment that can include probation or suspension of their license, as well as an administrative fine up to $5000 for each offense, and an official reprimand.
Please note, these are administrative penalties that are imposed upon real estate professionals and these penalties are not designed to repair the injuries that have occurred to the fraud victim; injuries are recovered by filing a lawsuit.
Fraud Victims Can Sue a Real Estate Agent and Broker for Damages
As explained in the case of Syvrud v. Today Real Estate, Inc:
In its leading decision in Johnson v. Davis, the Supreme Court of Florida declared:
Accordingly, we hold that where the seller of a home knows of facts materially affecting the value of the property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer. This duty is equally applicable to all forms of real property, new and used. Johnson, 480 So.2d at 629.
The parties agree that the duty of disclosure announced in Johnson v. Davis extends to a seller’s real estate broker. See Revitz v. Terrell, 572 So.2d 996 (Fla. 3d DCA 1990); Rayner v. Wise Realty Co. of Tallahassee, 504 So.2d 1361 (Fla. 1st DCA 1987).
A seller’s broker may also be liable to a buyer on the theories of negligence and fraudulent misrepresentation. See Young v. Johnson, 538 So.2d 1387 (Fla. 2d DCA 1989).
Punitive or Punishment Damages in a Fraud Case Against a Real Estate Agent or Broker
Most, if not all, lawsuits against real estate agents or real estate brokers for fraud in Florida include a count seeking to recover the actual damages sustained by the plaintiff. Additionally, these lawsuits also aim to assess punishment against the fraudster through “punitive” damages.
Here, the trier of fact is allowed to award a specific amount of damages to the plaintiff in order to punish the wrongdoer. The goal here is to discourage this sort of behavior by real estate professionals in the future.
A key element here, from a litigation and possible settlement standpoint, is that insurance policies (and yes, realtors do have malpractice insurance) do not cover punitive damages. This means, that punitive damage awards will have to be paid out of the personal assets of the defendant who has been found to have committed fraud in a real estate deal or transaction. Does a real estate agent want to take that risk?
A good piece of advice is to at least speak with an experienced Florida real estate lawyer to learn about your rights. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.
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