top of page
  • Writer's pictureJohnson & Johnson Law

Been There: Our Real Estate Malpractice Cases Against Agents and Brokers by Subject Matter

Over the last 18 years from both a plaintiff's and defense perspective, we've handled, reviewed, and advised on hundreds of real estate agent and broker malpractice claims. Our litigated cases have involved, among other things, the alleged failure to:

  • Identify property pins and boundaries;

  • Investigate restrictive covenants/failure to properly advise or refer for interpretation of restrictive covenants;

  • Verify buyer financial bona-fides and funds availability;

  • Disclose a property's location within a FEMA floodplain;

  • Disclose a property's history of flooding in the absence of floodplain designations;

  • Review or deliver seller's disclosure information;

  • Accurately market and investigate the existence of water and sewer service;

  • Advise or disclose on shared well issues;

  • Recommend follow up with appropriate professionals, including structural and geotechnical engineers, following review of a home inspection report;

  • Review a home inspection report;

  • Recommend a home inspection (in fact, we've had several cases involving realtor recommendations to actually forego an inspection altogether);

  • Communicate time-sensitive information within prescribed deadlines;

  • Identify water rights problems or refer for professional review;

  • Identify or communicate the existence of Controlled Groundwater Areas (CGWAs);

  • Accurately represent the breadth and applicability of "home warranty" coverages (they're worthless);

  • Obtain publicly-available information regarding a property's septic system;

  • Recommend inspections or otherwise confirm water flow in a low-flow area;

  • Confirm year-round, four-wheel vehicle access for a year-round residence (as opposed to by snowmobile, yes, unbelievably it happens);

  • Disclose the existence of tribal jurisdiction over water, sewer, and other property issues;

  • Disclose the existence of regulatory investigations or litigation regarding property use;

  • Disclose roofing problems (metal and asphalt);

  • Disclose well problems, including chronic flow and bacterial contamination;

  • Identify or disclose the existence of public rights-of-way within supposed property boundaries;

  • Verify square footage;

  • Verify usable commercial space relative to zoning regulations and parking allocations;

  • Identify or recommend investigation of mold;

  • Identify or recommend follow up regarding potential construction defects or structural concerns;

  • Appropriately draft contracts, including contracts for deed;

  • Identify or disclose prior expert reports regarding ongoing water, soils, or other geotechnical phenomena;

  • Disclose conflicts of interest between real estate agent and the inspector he or she recommends;

  • Identify a history of methamphetamine contamination;

  • Identify hazardous waste contamination;

  • Disclose the existence of unexploded military ordnance;

  • Disclose prior structural repairs, including helical pier installation;

  • Accurately identify zoning (for residential and commercial purposes);

  • Verify compliance with the Americans with Disabilities Act (commercial);

  • Accurately represent business assets or revenue;

  • Identify a history of sewer line collapse, backups, and other problems;

  • Accurately communicate receipt of earnest money or buyer intent to proceed;

  • Identify whether a particular property satisfied client requirements for a Section 1031 like-kind exchange;

  • Recommend disclosure and/or follow up regarding radon test results;

  • Accurately market business equipment contained in a commercial buy-sell;

  • Confirm that repairs have been performed in accordance with the client's Notice of Inspection (in at least one case, resulting in catastrophic personal injury);

  • Properly identify and then transfer grazing permits;

  • Properly identify and then transfer DNRC, BLM, and Forest Service leases;

  • Communicate with all principals to the transaction; and

  • Appropriately supervise agents and provide adequate oversight and education.

While we only handle consumer-side (plaintiff's) real estate litigation these days, keep in mind that we didn't file all of the foregoing cases; our experience includes the prosecution and defense of real estate malpractice claims. While extremely fact-dependent, the foregoing issues are often advanced in litigated cases through claims for violation of the Montana Real Estate Licensing Act and Montana Consumer Protection Act.

118 views0 comments

Recent Posts

See All


bottom of page