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11 Nova L. Rev. 825 (1986-1987)
Real Estate Broker Liability in Florida: Is Mandatory Housing Inspection in Florida's Future

handle is hein.journals/novalr11 and id is 843 raw text is: Real Estate Broker Liability in Florida: Is Mandatory
Housing Inspection in Florida's Future?
I. Introduction
For many Americans, the purchase of a home is perhaps the most
important legal transaction of their lives.1 Despite this reality, however,
the typical homebuyer today neither seeks representation by a licensed
real estate broker nor retains legal counsel to assist in the transaction.2
When homebuyers do retain legal counsel, very often it is only for mat-
ters concerning the transfer of title.3 Not surprisingly, this lack of fore-
sight has resulted in a host of sale-related legal problems - problems
which will only multiply as the supply of used homes increases and the
cost of residential property continues to spiral upward.4
In many jurisdictions, these problems are evidenced by a general
increase in sale-related litigation directed at licensed real estate
agents.5 Brokers' are classic targets for post sale liability. They are
1. See Currier, Finding the Broker's Place in the Typical Residential Transac-
tion, 33 U. FLA. L. REV. 655 (1981).
2. Comment, Dual Agency in Residential Real Estate Brokerage: Conflict of
Interest and Interests in Conflict, 12 GOLDEN GATE U.L. REV. 379, 387 (1972):
In practice, there is seldom a written agreement between the buyer
and the cooperating broker for representation in procuring a home. The
cooperating broker is guaranteed a commission through the seller's listing
agreement. The buyer receives free representation to the extent of the
presentation of the offer. The courts, however, have generally found an
agreement implied from the actions of the parties, based on reasonable
expectations of the parties.
3. W. BEATON, R. BOND & J. FERGUSON, REAL ESTATE 327 (2d Ed. 1982) [here-
inafter cited as BEATON]. The fact is that buyers are usually unrepresented in the
sales transaction until they hire an attorney to examine the title. Id.
4. Currier, supra note 1, at 663-77.
5. See Markham, Going for Brokers, Miami Herald, Aug. 17, 1986, § H, at 22,
col. 1; Campbell, Real Estate Industry Faces Law Suit Crisis, L.A. Times, Sep. 7,
1980, Pt. VIII, at 1, col. 1. This note will focus specifically on the liability of the real
estate broker for negligence in discovering and disclosing material defects to purchasers
of residential property. It does not address broker liability for action based on fraud or
deceit. That topic has seen extensive coverage. See RESTATEMENT (SECOND) OF TORTS
§ 552 (1977); 12 AM. JUR. 2D Brokers § 108 (1964); Annot., 55 A.L.R.2d 342 (1957);
Annot., 61 A.L.R.2d 1237 (1958); Annot., 8 A.L.R.3d 550 (1966). Homebuyers have
also sued brokers for breach of contract. See, e.g., Bar v. Rhodes, 274 Cal. App. 2d

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