SC Court of Appeals takes a deep dive into developer duty case

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Was I’On Village’s developer obligated to convey specific amenities to the HOA?

IOnLafayette

Photo courtesy of Iioncommunity.com

This case was called “convoluted” by our Court of Appeals, and I couldn’t agree more with that characterization! The February 27 decision involved I’On Village in Mt. Pleasant. * The community, founded in 1995, was named for the first mayor of the Town of Sullivan’s Island, Jacob Bond I’On and is a mixed use “new urbanist development”, meaning it consists of charming walkable neighborhoods containing a wide range of housing and job types.

At the heart of the case is the developer’s alleged promise to convey certain amenities in a residential community to the homeowners’ association. Specifically, homeowners allege the developers promised to convey a community dock and creekside park on a lot containing a boat ramp to the owners’ association but instead sold those amenities to a third party. The developers alleged that they promised to convey and did convey a “generic” community dock and creekside park to the association, but not the specific ones located on the boat ramp lot.

This blog will attempt to stay out of the weeds of this 27-page case in an effort to point out only those decisions of the Court that may be of interest to real estate practitioners.

Does a developer have a fiduciary relationship with the homeowners’ association and its members requiring it to convey common areas?

The Court’s answer is “yes”, but the duties of the developer should be determined by a careful reading of the restrictive covenants.

The developer had argued that the “business judgment” rule would control, and that absent a showing of bad faith, dishonesty or incompetence, the judgment of the developer should not be set aside in a judicial action. The Court rejected the argument that the business judgment rule precludes the existence of a fiduciary relationship. Citing an earlier case, the Court stated that the business judgment rule is compatible with the good faith requirement for fiduciaries.

The Court said a confidential or fiduciary relationship exists when one reposes a special confidence in another, so that the latter, in equity and good conscience, is bound to act in good faith with due regard to the interests of the one imposing the confidence.  Citing a second case, the Court said anyone acting in a fiduciary relationship shall not be permitted to make use of that relationship to benefit his own personal interests, specifically, a developer in control of an owners’ association may not make decisions that benefit the developer’s own interest at the expense of the association and its members.

However, the Court held, South Carolina precedent does not impose on developers a generic fiduciary duty to convey title to a subdivision’s common areas to the owners’ association in every case. Rather, the restrictive covenants of the subdivision controls. The Court decided that the record in the case did not support the duty of the developers to convey to the association the specific amenities demanded.

Does the after-acquired property doctrine apply to a recreational easement in South Carolina?

The Court’s answer is “no”.

In February of 2000, the developer conveyed to the owners’ association a “Recreational Easement and Agreement to Share Costs”. Curiously, the developer did not obtain title to the property in question until six months later. At trial, the circuit court issued an order declaring the document invalid and void ab initio.

The developer argued on appeal that the after-acquired property doctrine would have acted to ratify the easement when title was obtained, but the Court of Appeals, finding no South Carolina authority for the proposition that this doctrine applies to the grant of an easement, declined to apply the doctrine to the recreational easement in question.

 May a derivative action be filed by property owners when a developer-controlled owners’ association fails to protect the interests of the owners?

The Court’s answer is “maybe”, but only if the complaint properly outlines the efforts made by the owners to obtain the action sought from the board of directors of the association and the reasons for failure to obtain the action or for not making the effort. The pleadings in this case did not satisfy the “demand requirement” to the Court’s satisfaction nor did they allege facts indicating a demand on the board of directors would have been futile. So the Court rejected the derivative action.

Litigators may find fascinating long discussions about statutes of limitations in various causes of action, abuse of process, amalgamation of parties and awards of attorney’s fees, but I’m opting to spare dirt lawyers any discussion of those issues. Read the case if you find those issues captivating. This litigation is not over as the Court of Appeals remanded the case for consideration of several issues by the trial court. My guess is that we will probably visit this case again.

 *  Walbeck v. The I’On Company, LLC, South Carolina Court of Appeals Opinion 5588 (February 27, 2019)

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Sometimes the sky isn’t so blue in Malibu

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California case might spell trouble for real estate agents and brokers across the country

The California Supreme Court decided a case in late 2016 that may have wide-ranging effect for real estate companies in that state.* The case involves a Chinese millionaire’s 2007 purchase of a mansion in Malibu for $12.25 million.

The seller, a trust, engaged Chris Cortazzo, a salesman in Coldwell Banker’s Malibu West office to sell the property.  As Cortazzo prepared to list the property, he obtained information from the tax assessor’s office that indicated the property’s living area was 9,434 square feet. The building permit described a single-family residence of 9,224 square feet, a guest house of 746 square feet, a garage of 1,080 square feet and a basement of unspecified area. The MLS listing stated that the property “offers approximately 15,000 square feet of living area”. Cortazzo also prepared and distributed a flyer making the same square footage representation.house measuring tape

In 2007, a couple made an offer to purchase the property. By handwritten note, Cortazzo informed them that Coldwell Banker did not “guarantee or warrant” the square footage, and advised them to “hire a qualified specialist to verify the square footage”. When the couple requested documentation of the square footage, Cortazzo gave them a letter from the property’s architect stating the “size of the house, as defined by the current Malibu building department ordinance is approximately 15,000 square feet.”  In a cover note, Cortazzo again cautioned them to hire a specialist. This sale fell through.

Horishi Horiike had been working for several years with Chizuko Namba, a sales person in Coldwell Banker’s Beverly Hills office, to find a residential property to buy. Namba showed Horiike the residence in question. Cortazzo gave Horiike the marketing flyer advertising approximately 15,000 square feet and an MLS printout that did not specify the square footage and contained note in small print that “Broker/Agent does not guarantee the accuracy of the square footage.” Horiike and the selling trust entered into a contract.

Before the closing, Horiike signed three disclosure forms confirming that Coldwell Banker represented both the buyer and the seller in the transaction. Under California law, a real estate broker may act as a dual agent for both parties, provided both parties consent to the arrangement after full disclosure.  The broker may act through one or more “associate licensees”, typically the salespeople who operate under the broker’s license and supervision. The governing statute provides that when an associate licensee owes a duty to any party in a real estate transaction, that duty is equivalent to the duty owed to that party by the broker.

Cortazzo did not state in writing to Horiike that there may be a discrepancy in the square footage, as he had done with the previous potential buyer. He also did not advise Horiike to retain an expert to verify the square footage. After the closing, Horiike learned that the property had less than 12,000 square feet of living area (although Coldwell Banker experts testified at trial that the living area was 14,186 square feet.)

In 2010, Horiike filed suit against Cortazzo and Coldwell Banker for intentional and negligent misrepresentation, breach of fiduciary duty, unfair business practices and false advertising. He did not sue the selling agent, Namba.

In a unanimous decision, California’s Supreme Court stated that the case presented a single, narrow question:  whether the associate licensee who represented the seller owed a duty to learn and disclose all information materially affecting the property, including the discrepancy in the square footage. The Court held that Coldwell Banker, as broker, owed a fiduciary duty to both parties and that Cortazzo, as associate licensee, had the responsibility to properly investigate and disclose all important information related to the transaction. The Court concluded Cortazzo owed a duty to Horiike equivalent to the duty owed to him by Coldwell Banker.

Several trade associations filed amicus briefs in the case. One concern is that an agent working with a buyer has no idea what property that buyer will ultimately purchase. Whether the same broker will represent the seller can’t be predicted. Another concern is that this decision may also reach commercial transactions. It is also possible that this case may open selling agents open to lawsuits from their clients for over-disclosure.

Could this happen in South Carolina? A provision in our statutory scheme may save brokers from the fate set out in this case, at least where different branch offices of a real estate firm are involved. Here, each branch office must be managed by a broker-in-charge. South Carolina Code §40-57-350 (I)(2) states that a broker-in-charge and associated licensees in one office of a real estate brokerage firm may conduct business with a client of another office of the real estate brokerage firm without creating a dual agency relationship, so long as the branch offices each have separate brokers-in-charge and do not share the same associated licensees.

I can’t find similar protection for listing and selling agents who work in the same branch office, nor for companies with listing and selling agents in the same location.  And, as we all know, there is no predicting what our court might say in connection with real estate matters. We will have to pay attention to see whether other courts, and particularly South Carolina courts, follow the lead of the California Supreme Court.

*Horiike v. Coldwell Banker Residential Brokerage Co., 1 C5th 1024 (2016)