Agent is sued for not finding cemetery site near the property

[littleJoe]

What is the name of your state? MA

A real estate agent is represending a buyer, who is a US medical student from an Asian country. The offer was accepted and later P&S was signed by both parties, but the buyer cancelled the purchase without paying the deposit. The buyer found a city cemetery site near the property after P&S was signed. The seller sued the buyer for not paying the deposit, buyer's attorney suggested the buyer to settle the case as the buyer will likely lose the case in court.
Now the buyer and his attorney is asking damages compensation from the buyer's agent for the reason the cemetery was not found by the agent earlier. How likely the agent will lose the case if the case goes to the court?

Additional facts:
1) The buyer never told the agent about his religion or opinion about any cemetery before P&S signed, but the agent admitted that he knows some Asian doesn't want to live "directly" adjacent to cemetery, or visiable to it;
2) The city cemetery is not directly adjacent to the condo building, instead, there are another large residential buildings (10 floor high and 150 yard long) between this property and the cemetery, the cemetery is not visible from the street as there are high walls blocking the view from the street. People cannot see the cemetery due to the distance (300~ yard), and blocking buildings and walls.
3) this is 150 year old historial cemetery site and there has been no burial in recent 150 years.

Your opinion is very appreciated.

Joe.

 

[Zigner]

The agent's attorney would be in a much better position to evaluate the agent's position. The agent should speak to his/her attorney about the matter.

The agent should also be reporting this to her/his insurance carrier.

 

[littleJoe]

Thanks, Zigner.
The agent did contact the insurance, but there is a large deducable, so the agent is concerned if the insurance settles with the buyer within the deductable, so the agent wants to know if he should reject the insurance's suggestion to settle within the deducable value.

 

[Zigner]

Thanks, Zigner.
The agent did contact the insurance, but there is a large deducable, so the agent is concerned if the insurance settles with the buyer within the deductable, so the agent wants to know if he should reject the insurance's suggestion to settle within the deducable value.

Your question can't be answered by random internet strangers.

 

[zddoodah]

A real estate agent is represending a buyer, who is a US medical student from an Asian country. The offer was accepted and later P&S was signed by both parties, but the buyer cancelled the purchase without paying the deposit. The buyer found a city cemetery site near the property after P&S was signed.

This begs a bunch of questions.

1. Why is a medical student looking to buy a cemetery plot?
2. Who made an offer to whom? The buyer to the seller?
3. What does "P&S" mean?
4. What "property" are you talking about?
5. Who are you in this scenario?

How likely the agent will lose the case if the case goes to the court?

The utter dearth of relevant facts and the lack of clarity relating to the facts we have makes it impossible to assess this intelligently.

The buyer never told the agent about his religion or opinion about any cemetery before P&S signed, but the agent admitted that he knows some Asian doesn't want to live "directly" adjacent to cemetery, or visiable to it

I'm not sure why you think this is relevant. Also, "Asian" encompasses 50-55 countries, probably 10x that many ethnicity and about 4.5 billion people (probably more than 5 billion when you consider "Asians" who don't live in Asia). Are you suggesting that what "some" of those 5 billion people do and don't want is in any way relevant to whatever legal issue you're trying to raise?

Your second and third additional facts seem even less legally relevant, and it's not clear what "condo" you're talking about, who owns it or what it has to do with anything.

the agent is concerned if the insurance settles with the buyer within the deductable, so the agent wants to know if he should reject the insurance's suggestion to settle within the deducable value.

Hence the prior suggestion for the agent to consult with an attorney.

Also, how much money is at issue here.

 

[Zigner]

This begs a bunch of questions.

The agent is the buyer's agent for an individual who wishes to purchase a home in the US. Maybe that will clear up a little bit (although, there's still a ton of other questions).

 

[FlyingRon]

P&S is purchase and sale. It's a finalization of the offer/acceptance in a areal estate contract (usually not much different from the offer itself).

 

[adjusterjack]

Thanks, Zigner.
The agent did contact the insurance, but there is a large deducable, so the agent is concerned if the insurance settles with the buyer within the deductable, so the agent wants to know if he should reject the insurance's suggestion to settle within the deducable value.

Unless it's for a few thousand in "go-away" money, my opinion, for the two cents that it is worth, is that it is worth it for the agent to consider the option (if he has it) to refuse any settlement and insist that his E&O carrier deny the claim and provide a defense.

Two reasons:

1 - I don't believe the agent had any duty to investigate the presence of nearby cemetaries unless the buyer specifically asked him to, regardless of what he thought he knew about Asians.

2 - Massachusetts has an interesting statute which I will quote in its entirety:

Section 114: Real estate transactions; disclosure; psychologically impacted property

Section 114. The fact or suspicion that real property may be or is psychologically impacted shall not be deemed to be a material fact required to be disclosed in a real estate transaction. ''Psychologically impacted'' shall mean an impact being the result of facts or suspicions including, but not limited to, the following:

(a) that an occupant of real property is now or has been suspected to be infected with the Human Immunodeficiency Virus or with Acquired Immune Deficiency Syndrome or any other disease which reasonable medical evidence suggests to be highly unlikely to be transmitted through the occupying of a dwelling;

(b) that the real property was the site of a felony, suicide or homicide; and

(c) that the real property has been the site of an alleged parapsychological or supernatural phenomenon.

No cause of action shall arise or be maintained against a seller or lessor of real property or a real estate broker or salesman, by statute or at common law, for failure to disclose to a buyer or tenant that the real property is or was psychologically impacted.

Notwithstanding the foregoing, the provisions of this section shall not authorize a seller, lessor or real estate broker or salesman to make a misrepresentation of fact or false statement.

General Law - Part I, Title XV, Chapter 93, Section 114 (malegislature.gov)

Note the emphasis on "but not limited to."

A religious aversion to having a cemetary near one's home may very well be construed as a "psychological impact."

 

[Just Blue]

OT: My aunt has a home in Ipswich Ma...complete with 5/6 400 year old graves. No ghosties so far.

 

[littleJoe]

Thank you all very much for all your comments and shared thoughts.

Here I will answer the questions raised during the talks here.

1) Neither the buyer (medical student) nor the agent had knowledge about the cemetery before P&S was signed as this cemetery is 300 yard away and behind high walls and building. This was found after P&S signed to purchase a condo in a city.
2) The buyer made an offer to the seller through the buyer's agent, which was accepted;
3) P&S, official agreement to purchase and sales;
4) This is related to purchase a condo in a city; This condo is inside of a large building with around 50 units;
5) I am related to this poor agent;

The agent and the buyer share the same culture, so the buyer thought the agent should know automatically that the buyer doesn't want cemetery near the purchased condo even without telling the agent.

I appreciate adjusterjack comments and will let the agent know, especially for the quoted section 114.

 

[zddoodah]

The agent and the buyer share the same culture, so the buyer thought the agent should know. . . .

This is the basis of a losing legal claim.

You dropped us into the middle of a story, but here's what I think you're saying:

A person from...ummm...let's just say Turkmenistan (let's call him Arslan) engaged a real estate agent who is also from Turkmenistan (we'll call him Batyr) to help him find a condo. Arslan did not want the condo "near" (whatever that means) a cemetery. However, instead of telling this to Batyr, Arslan assumed Batyr would know this. Arslan, acting through Batyr, made an offer to purchase a particular condo, and the seller accepted that offer and a contract of sale was signed. Arslan apparently did all this without investigating to determine the proximity of any cemeteries. After signing the contract, Arslan learned of a nearby cemetery and backed out of the deal. The seller sued Arslan for an unstated amount of money, and Arslan is now threatening to sue Batyr.

Is that roughly accurate? If so, Batyr has nothing to worry about but still should put his E&O insurer on notice of the threat.

 

[adjusterjack]

The agent and the buyer share the same culture,

I don't think that's going to be relevant. Many who share the same culture and/or religion practice the culture and/or religion differently.

Especially if one member of the culture has been Americanized while the other is fresh off the boat.

 

[quincy]

If the agent was not informed in advance by the buyer that properties in close proximity to cemeteries were to be excluded from all property searches, the agent cannot be held responsible for the buyer’s breach of the purchase agreement.

A buyer potentially could be forced to complete the sale per the terms of the purchase agreement but “specific performance” is rarely court ordered in regular real estate transactions. Instead, a buyer who backs out of a signed purchase agreement would typically forfeit their earnest money deposit, which is a small percentage of the selling price of the property generally submitted to the seller along with any offer to purchase.

If the seller were to take this buyer to court, the court could conceivably order the buyer to pay the seller what should have been paid when the offer was presented (the earnest money).

The purpose of earnest deposits is for just this type of situation, where a buyer decides to back out of a signed purchase agreement. The earnest money deposit is to compensate the seller for the loss of time the house is off the market and for any potential lost sale.

 

[littleJoe]

This is the basis of a losing legal claim.

You dropped us into the middle of a story, but here's what I think you're saying:

A person from...ummm...let's just say Turkmenistan (let's call him Arslan) engaged a real estate agent who is also from Turkmenistan (we'll call him Batyr) to help him find a condo. Arslan did not want the condo "near" (whatever that means) a cemetery. However, instead of telling this to Batyr, Arslan assumed Batyr would know this. Arslan, acting through Batyr, made an offer to purchase a particular condo, and the seller accepted that offer and a contract of sale was signed. Arslan apparently did all this without investigating to determine the proximity of any cemeteries. After signing the contract, Arslan learned of a nearby cemetery and backed out of the deal. The seller sued Arslan for an unstated amount of money, and Arslan is now threatening to sue Batyr.

Is that roughly accurate? If so, Batyr has nothing to worry about but still should put his E&O insurer on notice of the threat.

Yes, that's quite accurate, Zddoodah!

 

[littleJoe]

I don't think that's going to be relevant. Many who share the same culture and/or religion practice the culture and/or religion differently.

Especially if one member of the culture has been Americanized while the other is fresh off the boat.

Yes, I cannot agree more, thank you!