Expert: Jessica Bryan - 3/13/2009

Question
QUESTION: Hello - My question is more of a legal thing with my realtor.  I am selling my home while it is vacant (I am in an apartment an hour and a half away from it).  My realtor of course is in the same vicinity and checks up on the home.  Within the last week she called me to tell me that she had visited the home and the toilet had frozen due to the heat shutting off (the heat was on due to government assistance and it ran out).  She left without turning the valve off to the toilet (the one that is directly connected to the toilet that would shut the water off) despite knowing that is exactly what you need to do to prevent further damage (she had explained this process to us back when she was helping us BUY the house - she is not helping us sell it).  She had also explained that "we" (including herself, as apposed to "you" excluding herself) would need to have it winterized if this happened.  Anyway, due to the fact that she neglected to turn off the valve, the toilet shattered, the bathroom flooded, the floor tiles have come up and mold is growing, which shows that it has been that way probably since the day she found it (enough time for mold to grow).

My question is, can she be held responsible (or at least partially) for this?  She has all of our keys to the house, though we know the lock box number.  What is getting me is that she found it first, knowing what she could do to prevent damage, didn't do ANYthing, knowing we could not make it there quickly enough, and is now costing us quite a bit of money that we do not have at all (and in my opinion, potentially losing any hope of sale due to the mold).

Thank you for your help!

ANSWER: Dear Kristina;
Since the agent was not authorized to list or sell this home, she was (I presume) doing you a favor to check on your home.  I am not sure why she is being called your REALTOR since there is not a contractual agreement that exists to authorize her to represent you or your interests.  Correct?  Therefore...she acted as a good neighbor to check on the home and tell you about a problem.  After doing so, it was your responsibility to take precautionary measures that she was not authorized to do.  Granted, it would have been nice for her to turn off the water but she was not obligated to do so. It is the same as if I walked into a friend's home and called them to say that a door was unlocked.  I would certainly think about locking the door for the friend but what if the friend didn't want the door locked for some reason?  After talking to the friend, if we agreed that I should go and lock the door, I would then do so  but not until I had confirmation that this is what they wanted me to do. Here's another example...I walk into an unoccupied (but furnished) home and some of the plants look wilted.  I call the owners to advise that the plants look like they need water.  Later, I am told that the plants all died due to lack of water.  Is this my fault?  NO!  If I took it upon myself to water the plants how do I know for sure that the owners would approve.  Maybe the planters would leak and cause water spotting on the floor.  Maybe these plants were on a watering schedule that would hurt them if they were over watered despite how they looked.  Who knows?  As a Real estate agent, I always discuss a plan of action particularly involving the property of someone else.

I know that the agent was calling you to warn you about a problem and that she knew what must be done, but it was not her place to do anything until she discussed it with you.  What you have neglected to tell me was what your response was to her news of the toilet freezing. Did you ask her if she would turn the water off?  You said that she had explained the process to you when you bought the house.  Since you had knowledge of the process and the fact that the home was now unoccupied, you are ultimately responsible. You mentioned that she had explained the winterizing process to you using the term "we" rather than "you."  That was while she was your agent.  However, agency ends when the business involvement or contract date ends.  We do not sign contracts to be your agent for life.

I am sorry.  I know that this is not what you want to hear, but I am providing you with the best opinion I can give.  I certainly hope that you have homeowner's insurance that will cover the damages.  Talk to the insurance agent to get some names of good mold remediation companies.  Good luck and best wishes.

Jessica Bryan

---------- FOLLOW-UP ----------

QUESTION: Please excuse me because I do not know what exactly to refer to her as - she IS the agent who is listing/selling my home.  It was her idea to have us keep the heat on in the first place knowing that when it ran out, it would be the last of it.  She has had free reign to do whatever she needed with the house (enter, adjust, set up showings, take pictures, etc.) as long as she contacted us at some point.  Also, since the house is vacant, we were advised by the agent to remove homeowner's insurance, basically were told that we couldn't even have insurance on a vacant house.

That probably doesn't make any difference, and in all good conscience, I think shutting off a valve when a toilet/pipes are frozen is an easier (safer) decision than watering plants?  Especially since she knew that is what we initially were going to do.  I am not trying to put all of the blame on her, but it seems like a lot of her influence has led us to these negatives.

Answer
Hi Kristina;
Okay...so I'm confused.  You said in your first note that she is NOT helping you sell the home.  If she is in fact your listing agent then I can understand why you are upset and holding her responsible.  Certainly she should share responsibility since she was authorized to do so by contract.  If you were told to discontinue insurance you were told wrong!  A vacant house is the riskiest situation and some insurance should always be held.  Go to the agent's managing broker and ask for resolution and compensation for bad advice and agent negligence.

Jessica Bryan