Advising a client who is sight impaired or who cannot read or write in the English language
Over the years as a real estate attorney in litigated and risk management inquiries, I have had to deal with situations where a licensed real estate agent in the State of California is representing a client who is not proficient in reading and/or writing the English language or is sight/visually impaired.
Where a transaction has not closed and the selling or listing agent (or worse yet, a dual agency or dual brokerage situation) represents a buyer or seller who is sight impaired or who cannot read or write in the English language, the real estate licensee needs to be very cautious. The agent must make sure that the client has had all of the written documents in a transaction gone over with him or her well before close of escrow at length, and that there are documents in the transaction file verifying that the client has had all mandated documents gone over well before close of escrow.
The best way to assist a client in a real estate transaction who is sight impaired and/or has difficulty with the English language is to have a trusted family member or friend sit down with the real estate agent and the client to go over each and every document in a transaction well before escrow is closed.
The translation or reading of each document in the given transaction by the trusted family member or friend of the client will take a significant amount of time to accomplish. However, under the law a real estate agent is a fiduciary to his or her client owing the utmost duty of care, honesty, and placing the interests of the client above his or her own. (Wyatt v. Union Mortgage Co. (1979) 24 Cal. 3d 773). As such, it is imperative that all clients fully understand the contents of all documents that are dated, signed and initialed in a real estate transaction before close of escrow.
Where one has a sight-impaired client or a client that does not read or write English well in a California real estate transaction, after the trusted family member or friend has sat down with the real estate agent and the client to go over each and every document in a transaction well before escrow has closed, the listing or selling agent should have a C.A.R. addendum form prepared. The addendum should list all of the documents that have been gone over with the client, who was present, who read and explained the documents. All who were present should date and sign the addendum, and copies should be provided to all parties.
The addendum is scanned into the transaction’s electronic file for safekeeping, and the original is placed in the file. In some circumstances, it may be prudent to have another member of the listing or selling brokerage accompany the actual selling or listing agent to the meeting where the transaction documents are gone over. This ensures that there is an additional witness at the meeting where the documents are explained to the client in case of future problems post close of escrow.
Have you worked with a visually impaired real estate client or one who had difficulty with the English language? Tell us what helped you successfully support them.
Mr. McCutchan’s practice is primarily civil litigation with an emphasis in defending professionals and businesses in real estate, mortgage brokering, construction, banking and agricultural industries and all phases of dispute resolution through trial and appeal. His area of practice is also agricultural law (viticulture and wineries), trusts and estates, probate, real estate transactions, business law and elder abuse. B. Edward McCutchan, Jr. was admitted to the Bar in 1985 and is admitted and qualified to practice in all California courts and the U.S. District Court, Eastern and Northern Districts of California as well as the United States Tax Court.
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