Disclaimers are a real estate licensee’s best friend. They can help to minimize your risk and can be used in many areas of real estate including listings, emails, websites and more.
Here’s how disclaimers can be used to avoid a lawsuit — and how to get your disclaimer wording correct to protect your real estate business.
Where to Use Disclaimers in Your Real Estate Business
Are emails binding as an offer and/or acceptance, even if the paperwork is unsigned?
In Feldberg et al v. Coxall, a buyer sued a seller on the basis the parties had an email agreement to purchase, even though nothing had been signed officially. The buyer and seller had exchanged emails, and the last communication was a response to an offer to purchase. According to court documents, this response was, “We must have a written approval letter from the bank today by 5pm, and I think we are ready to go”. The buyer provided the required information before the deadline. However, the next day, the seller backed out of the purchase.
In this case, the judge cited the Massachusetts Uniform Electronic Transactions Act, which dictates an email signature block, name, or email address in the “from” section of an email can be considered a valid signature if business is being conducted primarily by email. The outcome of this case was a settlement out of court.
Real estate licensees should add a disclaimer to their email signature to avoid any misunderstandings about offer and acceptance. Failure to do so poses a risk of unintentionally binding your client into a contractual obligation. State in your disclaimer that emails sent and received shall not create a binding contract or acceptance of an offer until the written contract is signed by all parties.
To prevent scammers from requesting wire transfers from your clients, it can also be useful to include another disclaimer in your email signature. Warn clients about wire fraud risks and potential scams. Include in your disclaimer a statement that you will never request funds via email, and ask your clients to phone you to verify any instructions if they do receive anything. The National Association of REALTORS® has a template for this.
Errors in listings do sometimes occur. If spotted, they can be fixed without impact. But, imagine if a buyer has purchased a property sight-unseen based on your listing description and then they discover that something is terribly wrong?
All listings should include a disclaimer outlining that there is no guarantee of their accuracy, and information is subject to change. Prospective buyers should be encouraged to do their own research and due diligence, including measurement of the property’s square footage or land measurements.
Social Media Profiles
Brokers may ask their teams to add disclaimers to their personal profiles. The main purpose of this is to protect your broker if a licensee says something controversial or potentially claim-worthy over social media. Including a disclaimer can also protect YOU in case your broker sues you for something you say on social media that potentially damages their business.
A statement saying, “Views are my own and not of my employer” or something similar will suffice. Typically, if you’re asked to include a disclaimer by your broker, they will likely provide the required wording.
Your Website and/or Blog
Online Home Value Assessments
Online home value assessments are unlikely to be 100% accurate, and they are NOT appraisals. However, they can provide your sellers with an estimate for their asking price. Licensees should include a disclaimer in any documentation relating to online home value assessments. Your disclaimer should state that estimates arising from online home value assessments are no substitute for an official property appraisal and a comparative market analysis.
Disclaimers do not absolve you of your responsibilities to follow COVID-19 safety precautions. However, disclaimers can be useful for open houses or events where there are going to be several people at the same time. As some people with COVID-19 are asymptomatic, the transmission of the virus can occur even if everyone appears to be well and healthy.
If using a disclaimer in this context, you would state that, despite precautionary measures, there is no guarantee against contracting COVID-19. Outline what you are doing as a licensee to try and prevent the spread of the virus and remind visitors about what they should do to minimize the risk of catching COVID while at the property or event.
You may ask visitors to sign an acknowledgment before entering a property. This is called a ‘Hold Harmless Agreement’. It is a documented and signed acknowledgment that confirms the other party has read and understood the risks.
Understand the Limitations of a Disclaimer
Disclaimers are legally binding if they are fair and reasonable and if they are accessible and can be viewed by the people they will affect.
A disclaimer will not hold up in court if it violates the laws in your state. It also won’t withstand legal scrutiny if gross negligence is proven.
Writing an Effective Disclaimer
Licensees should obtain advice from legal counsel when writing disclaimers. If you have CRES Real Estate E&O + ClaimPrevent®, you will also have access to expert legal advice from our qualified team of attorneys. They can provide you with advice on disclaimers, so you can sleep soundly knowing you are protected. Call CRES today at 800-880-2747 for a confidential discussion.