How can you prepare for potential claims?
Keep a Transaction Log and Document Everything in the File
Keeping a transaction log of what occurs when you do business is always a good idea. The outcome of a lawsuit against a real estate agent could come down to a he said/she said scenario, and if you have written documentation to evidence what happened, those documents can sway a jury in your favor.
You can’t enter everything into a transaction log, but listing certain items is a good idea, including:
- the contents of meaningful telephone conversations;
- the records of important occurrences, such as inspection reports; and
- the records of each time an agent provides any report or any other document to his or her client or other party, with a signature as evidence of a receipt.
When keeping a log, you should list the date of each event you’re tracking and a narrative of what occurred at that event. Most importantly, always enter the information in chronological order and do so at the time of the occurrence. If you enter the information of an event at a later date (for example, after you receive a demand letter), you may look like you’re recreating a version of the event to support your position.
Example: An agent provides his client/seller a Seller’s Disclosure Form to fill out as a part of the listing process. The client contacts the agent and tells the agent the form is confusing and she needs the agent to help her fill out the form. After informing the agent that she can’t assist the client and the client herself needs to be the one to fill out the form, what should the agent do immediately afterwards to avoid potential litigation and why?
Answer: The agent should then immediately enter in his or her log in chronological order the date and a narrative of what occurred. It wouldn’t be unusual for a seller being sued for failing to disclose a defect in the Seller’s Disclosure to allege that the agent helped her fill out the form and she was just following the agent’s directions. As stated above, being able to present the chronological log of your version of what happened could assist a jury in a trial years after the transaction to believe your version of the facts.