Buyers control the deal

Question: The sales agent who stuck with me for over a year finally found me a condo that I could afford and liked. She had me use a form that she referred to as a California residential purchase agreement to write my offer. But someone beat me to the punch.

Months later, I met the unit’s new owner. Learning from past mistakes, he said that this time he took extraordinary measures in not accepting the salesperson’s standard form. He limited the documents he wanted to obtain and dealt directly with the seller, cutting out the board and the management company. He took pains to bypass any third-party interference, including his salesperson, with his purchase and was able to close escrow in less than 30 days because of it, and for less money.

On all my other condo offers, the salesperson insisted on using a pre-printed form supplied by a trade group she belongs to. That form asks for some items that are not required by law. My salesperson said the form protects her interests and if she caused me to proceed in a manner that did not help me she was sorry. I think her insistence on this form cost me to lose multiple deals for more than a year. Can I sue her?

Answer: Buyers must perform their own due diligence. Just because the salesperson presents a pre-printed form doesn’t mean the client must use it. It appears that the salesperson did not act in a manner inconsistent with her obligations to you and under the law. The fact that she may have taken some steps to protect herself does not mean she is liable for a lost or incomplete sale. There are however, lessons to be learned from the experience.

In any client-professional relationship, it is the client who controls things, not the professional who is there to provide opinions based on recognized expertise. Such opinion is likely rendered to ensure the transaction runs smoothly and not afoul of the law.

The use of a pre-printed trade form presented by a salesperson is often an indication that the terms benefit the professional and not the client, but the client still controls the relationship, terms of the contract and use of the form. The client is free to delete non-beneficial terms and to insert others. Whether the property is in a common interest development or not, there are no official forms for buying and selling. Documents can be drafted for each occurrence so they meet the needs of the parties to the agreement. The purchase agreement you used was one of any number of forms available including one prepared by you or your attorney. Whether you use a standardized form preferred by a trade group or one an attorney created, you would want to read the form and remove or modify those terms that benefit others at your expense.

Under the Davis-Stirling Act, sales of properties in common interest developments do not need to involve the homeowners association or any management company. The seller is required to provide certain documents to the potential buyer, as noted in Civil Code section 1368, and may request such documents from the homeowners association. The management company and the association itself need not be involved in the sale and purchase.

There are only two parties in the property sales transaction -- the buyer and the seller. If a salesperson refused to present your offer because it was not on his or her trade association’s form, you might have a case, but it would be easier to find a salesperson who is willing to present the offer on your terms. It is the buyer’s deal. Blaming the agent is a waste of time -- and money -- for your failure to take control of your purchase.

Send questions to P.O. Box 11843, Marina del Rey, CA 90295 or e-mail [email protected].