Standards of Care and The Expert Witness

Standard of Care is defined in Black’s Law Dictionary as “In the law of negligence, the degree of care that a reasonable person should exercise.”  It arises in most actions involving real estate licensees.  In fact it is the essence of real estate broker litigation.

Real estate agents are taught the standards apply in three general areas:

  1. Skill and care
  2. Disclosure of all material facts outside the reasonable diligence or discovery by the client, and
  3. Honesty, fair dealing and good faith.

The “standard” and “reasonable” are more carefully explained by a number of foundational matters.  These are:

  1. Statutes, codes, regulations – in other words, the law.
  2. Court decisions.
  3. Code of Ethics which the agent has subscribed to by virtue of membership in various organizations. The most prominent is the National Association of REALTORS.  Most of these ethics reflect what is already in the law.  There are other Codes of Ethics that many specialty groups subscribe to and there are the MLS Codes that apply if the agent is a member.
  4. Education and training necessary to pass the real estate license examination. The California Bureau of Real   Estate provides a reference book containing all the examination materials.
  5. Custom and practice. What most agents normally do in the course of their business which can be reasonably expected to be done for a client. 
  6. What the agent advertises or promises to do.
  7. What an agent should logically do to the benefit of a client.

As an attorney you will have already recognized and researched pertinent standards of care in your lawsuit and want to know how I can help you as a non-attorney practitioner.  Here are a few ways:

You will probably ask me to explain standard of care it in layman’s terms on the stand.  Having had more than 40 years as a teacher of real estate subjects at UCLA Extension, more than 800 cases as an expert witness and hands-on street experience in a couple of thousand real estate transactions, I explain standard of care fairly well.

Standards of Care are based on statutes, cases, code of ethics, custom and practice, and all the logic and common sense that entail to make up the foregoing. If there were not differing interpretations, there would not be lawsuits. I’ve heard a few.

Your real estate law library probably includes Miller & Starr California Real Estate books. Over the years, this set of books is considered the authority. I remember when Miller & Star consisted of two volumes and Marvin Starr lectured at my real estate classes at Berkeley. So each year, the interpretations have grown.

But there are sources that can have equal or greater consideration. Consider, does your law library have the following resources:

Interpretations of the NAR Code of Ethics (current edition and back issues)

The California Multiple Listing Service Model Rules

Code of Ethical Principles & Standards of Processional Practice of the Society of Industrial & Office REALTORS.

25 years back issues of California Real Estate magazine, the California Association of REALTORS official magazine.

20 years back issues of the Standard Forms of the California Association of REALTORS.

And similar resources from several other prominent real estate entities and organizations?

Extensive street experience and more than thirty years as a expert witness in real estate has its advantages.