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Last Update: 04/18/16

Florida real estate agents and their real estate brokers are professionals who must be licensed by the State of Florida to do business here. Applicants for a real estate agent’s license must study and pass a test to demonstrate their knowledge of the real estate industry. They have to take continuing education classes to keep up their knowledge and industry savvy on an annual basis, too.

Which means that people in the market for residential real estate here in South Florida should be able to trust the real estate agent or broker in a transaction, right? Sure!

And for the most part, things go smoothly here. Most real estate professionals aren’t trying to deceive anyone and they aren’t thinking of ways to commit an intentional act or make a “fraudulent misrepresentation” just to get a deal closed. (Though this does happen.)

However, real estate agents are human and they can make mistakes just like anyone.

Negligent Misrepresentation Happens – Mistakes Are Made by Real Estate Professionals

If a real estate agent or real estate broker in Florida makes a mistake and unintentionally misrepresents a material fact about a property, they may not mean to cause anyone harm. However, if their mistake in fact, their unintentional misrepresentation, does end up being relied upon by a buyer — and that buyer gets hurt because of it, then the real estate professional may be liable for the harm that has resulted.

In Florida, this would be a claim based upon “negligent misrepresentation” against the real estate agent or broker. Florida law places a legal duty of care upon the real estate agent or broker to provide accurate information in their real estate dealings. If they fail to meet this duty of care by unintentionally misrepresenting something, and that failure causes damage or harm to they buyer (or seller) that is owed their legal duty of care, then they are liable for a form of professional negligence.

The real estate agent or broker can be held financially responsible for the damages and harm caused by that failure in their duty of care even if it was a mistake on their part and they meant no harm. In these situations, their professional insurance coverage (called an “errors and omissions policy”) may provide coverage for the harm and damage that the buyer (or seller) is claiming.
Attic ladder opening

The Case of the Buyer Who Fell Through the Attic

One clear example of how negligent misrepresentations by a real estate professional can end up causing someone very real harm happened in the case of Horn v. First Orlando Realty Management Corp.,483 So. 2d 80 (Fla. Dist. Ct. App. 1986).

In this case, Margaret Horn was told by the real estate agent that the attic of her new place would be fine for storage. The real estate agent even went so far as showing Margaret Horn how she could access the attic and how to turn on the lights up there. Not only did she demonstrate this to Ms. Horn once — she showed her how to get up into the attic twice.

So, no surprise here, Margaret Horn moved in and decided to take advantage of that attic space to store some things. She pulled down the fold-away stairs from the ceiling. She climbed up, and she turned on the lights.

However, when Margaret Horn stepped out into the attic space and placed her weight on a flimsy part of the attic floorboards, the surface was not strong enough to hold her weight and she fell through the attic and down into the room below. This was a serious fall: Ms. Horn suffered a broken back in the accident.

When meant that Margaret Horn had a serious personal injury with life-changing consequences — and she had a substantial personal injury claim against the real estate agent and her real estate management company. When Ms. Horn’s claims were not honored by the real estate company and its agent, she sued.

Specifically, Margaret Horn sued for negligent misrepresentation regarding the ability to use the attic space for storage and the safety of doing so and the jury agreed with her. She argued that the real estate agent (and her employer, the real estate management company) had a duty of care under Florida law to Margaret Horn to be clear and correct regarding the attic and its safe accessibility.

There were no allegations that there was any intentional wrongdoing here. Mrs. Horn argued that the agent breached a duty of care to her when she explained that the attic could be used for storage, going so far as to demonstrate how to get up and access the attic for that purpose on two different occasions. When Mrs. Horn fell and was hurt, she argued that the breach of the agent’s duty of care caused her harm under Florida law for which the agent and her real estate management company are financially responsible.

While the trial court judge sided with the real estate defendants, on appeal the reviewing court agreed with the jury and also saw things her way.

“Because the complaint adequately alleged negligent misrepresentation and the evidence well supported the allegations, the trial court judge erred in substituting his judgment for that of the jury,” explained the appellate court which ordered a judgment be entered in favor of Margaret Horn on the grounds of negligent misrepresentation by the real estate agent.

Do You Have a Claim for Negligent Misrepresentation Against a Florida Real Estate Agent?

In Florida, real estate closings happen every day. If you are a buyer or seller that suspects they may have been the victim of a breach of an agent or broker’s legal duty of care to them, and you’ve got damages as a result of that breach, then you may have a claim that may be worth pursuing.

However, there are other legal factors to consider here, too. One of them is the contract that was signed by the real estate broker or the real estate agent — is there language that limits their liability? Are there other defendants that may be liable instead of the agent or in addition to them? And is this a case of mistake (negligent misrepresentation) or one of misconduct (fraudulent misrepresentation)? Having a discussion with an experienced Florida real estate lawyer can help you decide if you have a case, and if so, how best to proceed.

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.


Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.


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