Listen to Show Me The Receipts – Richard Nau vs Nancy K. Vogel | Episode 28
In this episode, Cassie, Ali, and Danielle discuss the real estate case “Richard Nau vs Nancy K. Vogel”.
Cassie Day just celebrated her 3 years as a real estate agent, so she picked this case to show a great example of when a real estate agent does everything right and covers their a**.
Tune in to hear about cemeteries, extensions on deadlines, and putting everything in writing.
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ABOUT US -🎙 Agents Unfiltered SEASON 2 is about a deep dive into some wild real estate cases and give our take! Get ready for some relatable and relevant information about “The Do’s, the Don’ts & the What The Fuck’s of Real Estate.”
Cassie: So first of all, I just wanna take a moment to say that yesterday it was my three year real estate anniversary and ever since I got my real estate license, I have taken a picture with a bottle of champagne because it’s cute and it’s fun and I don’t know, I just get stuck in these things. So yesterday Danielle’s like, I have this bottle that you can use from the broker’s open that you opened because you’re the only one who had a drink from the broker’s open.
Danielle: No, I was not the only one who drinks.
Cassie: But I had a little bottle with like one sip open a bottle and then do like you hold it and you shake it and the champagne goes everywhere. So I cover the top and shake it, and it shoots into my face. up my nose into my eyes.
Ali: Were you shaking it pointing towards you?
Cassie: No, because no better, I covered the lid like cuz I covered the top, which I don’t usually like to do with the actual little metal thing. It just shot up. Cause instead of just like letting it pop and like the whole thing shooting.
Ali: Did you get it on video?
Cassie: There’s picture evidence I made a post with it so you can go watch my little reel and if you really zoom in on the first picture of my face, it’s hysterical.
Ali: Oh my God. It’s so funny.
Cassie: I love that. And my eyes were burning and it was not cute.
Danielle: It was a very chaotic moment. It was hysterical.
Cassie: So happy three years of real estate to me.
Danielle: That’s a big deal.
Cassie: I know. I feel like I have like kicked ass.
Ali: You’re on the way to the 5% of people who make it past five years.
Cassie: I know. And I have had a busy three years in real estate and the longest I’ve gone without closing a deal, I think is four months in my whole three years.
Danielle: And you got licensed literally as Covid started.
Cassie: March 23rd. I took my test literally like two days before everything shut down.
Danielle: Well, but we knew it was coming. Remember? Yeah. Because then you took it and then someone else was trying to get in to take it and they were like pushed out like a month and a half or something.
Cassie: It’s been really fun. Celebrating by spraying champagne in my face.
Ali: That’s the only way to do it.
Cassie: The only way to do it, but I feel like it makes for a fun picture.
Ali: I was gonna say April showers bring me flowers, but it’s March.
Cassie: I did pour the rest of the champagne into Danielle’s yard, so maybe they’ll bring some nice champagne flowers.
Cassie: Okay. I’m really excited about this case. I feel like this is such a good example of an agent doing an amazing fucking job. She covered her ass throughout this whole thing. I feel like I had to pick this case and you’ll see why. So this is Richard Nau versus Nancy Vogel. As the trustee for Mark Vogel Residuary Trust and West Realty Incorporated. Okay. So he tried to sue the seller and his real estate agent.
Danielle: So the buyers tried to sue the seller and the buyer’s realtor.
Cassie: Yes. So he didn’t go after the seller’s realtor. He went after his own realtor. Here is the timeline. In March of 2015, Patricia Luwallan was hired by Richard Nau to view two parcels in Mason County. There was a home, a garage, and on the property it was a cemetery.
Danielle: Oh, love this. This is a Washington case?
Ali: No, thank you.
Danielle: I would totally buy a property with a cemetery.
Ali: You guys are weird. You kinda some spooky bitches though.
Cassie: I would totally share property with a graveyard. They are quiet neighbors.
Ali: How many people are living in your house?
Cassie: There’s spirits everywhere.
Ali: Not like at a cemetery. Do you know how many dead people are in there? So many. All of them are dead.
Cassie: I take my kids to cemeteries to go and walk around and I buy them each flowers and then put flowers on whatever graves they want. We walk around and we watch the sunset and we talk about, oh, look at this they passed away, they were this old, it’s like something that we do in my house because we’re spooky people, but if you die, who is gonna wanna hang out as a spirit in a grave? That is boring as shit. There’s no one there. It’s not gonna be the place that you died. Like I feel like graveyards are the least haunted place.
Danielle: I’m really trying to put myself in the spirit’s perspective.
Ali: I have a feeling though, that this guy wasn’t happy that he purchased a house on a graveyard
Cassie: It’s not the graveyard that’s the problem. He viewed the property twice before offering. The first time his agent pointed out the cemetery, 40 or 50 feet away from the house, told him it was there. There are a cluster of headstones you could see from the house. The second time he went, the seller walked the property with them and showed where she thought the property lines were, went through the information and talked through it. He was given a form 17.
Danielle: Yes, a seller’s disclosure.
Cassie: Yeah. Seller’s disclosure, and on the seller’s disclosure, here’s exactly what they wrote. To the best of my knowledge, there is an area approximately 70 by 70, partially on my lot, 103, and partially on the neighbor’s lot, that was a designated Potlatch Cemetery on the original plaque. The cemetery comprises five gravestones of the Walker Missionary family dating late 1800s to early 1900’s.
Danielle: That’s kind of cool.
Cassie: The cemetery is excluded by a tax bill. Lois remembers the tribe moving a number of Indian remains from the cemetery and transferring them to a different Indian burial site around mid-1900, leaving the missionary headstones. The tribe surveyed the cemetery in the early two thousands, but they do not have access to the cemetery and have only visited once or twice with my permission in the last 15 years. Neither the tribe nor county maintained the grounds. Also, visiting twice during the last 20 years was a small sound college class studying early settler grave sites. – And then we use the term Indian because it is used in the documents contained in the record. We intend, no disrespect. – So that was put into the seller’s disclosure. He knew it was there, she put the knowledge that she had.
So November 1st, Richard met to discuss with his agent Patricia, and she advised him of the importance of investigating in the cemetery and in writing, put ‘Inquire with Mason County and consider commissioning a survey of the property.’ She told him to make sure to get a survey of the property to find out what he wanted to find out.
Cassie: So that day, November 1st, they came to mutual acceptance with the condition of 30 days of feasibility, and the verbiage was the buyer will look into the shoreline requirements and the graves in tax parcel, da, da, da. She put it all into writing, put it all together.
They moved forward, he reviewed the plat map showing where the property line sat. He was doing his research. On November 2nd, the seller revised the seller disclosure, the form 17. It’s pretty similar. I don’t really feel like I need to read through it. I don’t really know what verbiage changed, but she just tweaked it a little bit. So he continued doing his research and his agent sent him the new form 17 and said, here you go, please sign page five in the same areas you did yesterday. You are signing that you have received the document, not that you approve of the content. So she’s like covering her base.
Danielle: I love this lady. She is amazing.
Cassie: She’s got everything in writing. I feel like so many cases we’ve looked at, like the one about the smell, like how do we know that he said that there was a smell so many years later, but she gets everything in writing.
Danielle: Love this.
Cassie: His agent referred him to a county employee named Grace Miller to investigate the cemetery. On November 7th he wrote a note on the feasibility contingency addendum saying ‘I’d be surprised if onsite meetings with Mason County can be scheduled within 15 days, especially with holidays approaching. Interested in building restrictions and impact of Graves Cemetery.’ So he’s doing his research. He’s within his timeframe. On December 2nd, he submitted a Mason County planning department pre-inspection application, and paid $255 to determine if there were any limitations imposed by the grave sites for him to build. On January 12th, Mason County Employee Miller inspected the property and two weeks later left a voicemail saying that he should contact the Washington Department of Archeology in historic preservation regarding developments around the graves and gave him the information.
Danielle: This already has a house on it, right?
Cassie: Yes. It already has a house and a shop.
Ali: Okay. So I’m just curious what else he wants to develop.
Cassie: On February 13th, the buyer received a commitment for title insurance for the property. The commitment did not insure against any excluded losses arising from Indian tribal codes or regulations, so any regulations around the grave site weren’t gonna be covered by the title insurance. Five days later, Richard and his agent met at the property and the agent saw the seller tell the buyer that she was leaving the property files behind for him to review if he wanted. He denies that this happened, but the agent backs up that the seller told him that. During the transaction, he requested four extensions to the deadline for his feasibility, and she granted everyone.
Danielle: Okay, it’s not looking good for him so far.
Cassie: Every single time he asked for an extension, she gave it to him and they closed on the property on February 19th.
Danielle: So he now owns the property. What year was this?
Cassie: 2016. This started 2015 and ended in 2016. At the end of 2016, he had a survey and the survey showed that a corner of the cemetery falls into the garage space.
Ali: So where the garage is already built?
Cassie: Yes. So the lines of the cemetery land there, he contacted the Department of Historical Preservation to find out what needed to happen, and they said the cemetery and graveyard are adjacent to your parcel of land, and the boundaries of the parcel appear to extend some distance Southwest towards your own parcel. Unfortunately, historic burial grounds and particularly Native American grave yards are ill-defined geographically, and there may be barriers and or archeological outside of the cemetery parcel built within your land. At this point, he decides to try and sue because he said that he did not receive the form 17 or accurate information about the cemetery, breach of statutory warranties, breach of duty at good faith and fair dealing, negligent misrepresentation and fraudulent concealment. He said that his agent failed to meet the standard of care owed to him by negligently misrepresenting the location and and extent of the Potlatch Cemetery, and failing to ensure that he received a set of form 17 disclosures.
Ali: I get so annoyed every time we go over these court cases, like there’s just always someone that just like what is your deal? Like, did you go into this just like hoping something would go wrong because you wanted to sue someone? like this is ridiculous.
Cassie: They didn’t tell him they, he didn’t have to take down the garage, so there was no harm. The only harm would be if he wanted to build a new building on the property that it would not be able to be within those lines that the survey drew. They didn’t ask him to remove what had already been built. That was over the lines.
Ali: Wow, but he still felt like he could sue.
Cassie: They denied everything. All of it. And that he had to pay for the fees, and then he tried to appeal and the appellate courts told him, you have no case. You can’t prove. And because the agent was so on top of writing everything down. She put everything in writing over email, so there was nothing that backed up his, his arguments.
Danielle: Love this. Literally, if this does not make a case for why you always save all your communication. It’s so I important to have it in writing.
Cassie: It’s a pain in the ass, but also you have it in writing and they come back and they you never told me that there was a cemetery and she has it in writing or I never saw the form 17, the seller disclosure, you signed two different copies of it.
Danielle: And you have the email showing that. Oh my gosh. I like this lady.
Cassie: Patricia’s amazing. She went above and beyond. She documented everything and even remembered conversations that were had, and I just feel like she did such an excellent job that there was literally no teeth to his argument.
Danielle: This is like the level of professionalism we all want, and this is, this is why we go so above and beyond to make sure that we have everything in writing because he has no. He had absolutely no case. The seller gave him four extensions on his contingency time frame.
Ali: Doesn’t that remind you of something we were recently dealing with?
Cassie: Yes. I’m just glad he didn’t try and bail the day before close like we just had happened to us.
Danielle: Ugh. After multiple extensions. I’m glad that the court found in her favor. I am shocked there was an attorney that would take his case and go to court.
Cassie: There was so much legal jargon to read through, but it’s like time and time again, he does the research, she has it in writing, he moves forward. Over and over again.
Danielle: And like I could potentially see there being an issue if they were like, no, you have to take down the garage. I could see that, like that is harm on the buyer, which still they may have found, like you still have plenty of time to do your due diligence and you didn’t. I could see that being more of a reason for him to go to court.
Cassie: This seems ridiculous.
Danielle: I’m sure for this agent, even with all the documentation having all documented, I’m sure that this stressed her out having to go to court for her profession and she probably lost sleep and couldn’t focus on other deals. Like it’s stressful, you never want to be in that position, but thankfully she had what she needed to have.
Cassie: She had what she needed to have. And if you think about it, they came to mutual acceptance on November 1st, and didn’t end up closing till what, like the end of February? This was a long transaction.
Ali: So many parallels.
Cassie: I know when I was reading through it, I was twitching a little bit thinking about our deal.
Ali: and you’re like, this one really speaks to me.
Ali: Cemeteries and extensions.
Cassie: and people trying to do stupid shit. When they have a zero foundation for it. Patricia, if you’re listening, you can join our team anytime.
Ali: All the way from Mason County,
Cassie: Just come to Spokane County. We’re cooler here.
Ali: That’s cool though. I like that case.
Cassie: Interesting. I just really loved reading it because it was just seeing her go so above and beyond so that when it went to court, it was literally dismissed immediately. Which is amazingly. There’s just no foundation to any of it.
Danielle: I love, and a good reminder that we need to document.
Cassie: I kick myself sometimes. I had a transaction not too long ago where there was a verbal miscommunication. I didn’t, after I had a conversation with another agent send an email and say, per our conversation… This, and then the conversation quote unquote never happened. I thought about that for hours and hours of, if I had just sent an email.
Danielle: That’s the thing, like I think the easiest way to back up a conversation on the phone is to send an email or a text afterwards, whatever’s like the preferred mode of communication of like as we discuss blah, blah, blah. Because we are on the phone a lot and going from place to place and it is hard to stop and like to take notes, as opposed to just following up with a text or email, because back in the day we used to have, like, before everything was online, we’d have these transaction folders and the first page I’d have like stapled in a, basically a communication log of everything that was said. I hadn’t saved me one time, text message wise, with a client and there was like a discrepancy in after the fact and I remember the client went to this attorney and laid out everything. I think the attorney was very suspicious that I had done my job, and so he said, okay, before we do anything, I wanna see all the messages from your realtor, and I sent them all over and he was like, good thing you hired her.
Danielle: And I was like, oh my gosh, I’m so glad because, so good. Sometimes you forget like I, if I had to go back in that transaction without it being written and not having the communication handy. I wouldn’t have remembered half of what I said. As I was reading through my messages, I was like, oh yeah, this did happen, but I forgot. I mean, we do so many transactions, it’s hard to keep track of everything and if you don’t have those that you can go back to that show exactly what was said, going off a memory like that case we did with the whole smell, it’s gonna be tainted. There’s no way, memory is not perfect.
Cassie: It is so good after you have a conversation to say it was great chatting with you per our conversation and putting it into writing, you know, I just wanna make sure we’re all on the same page, and then you’re covered, then you haven’t, and then you put those in your file and it’s not like a he said, she said situation. I just really liked this case.
Danielle: Absolutely. It was a good one.
Cassie: I know, and now we need to go find a property with a graveyard on it that I can live on with.
Ali: Oh my gosh. Can you imagine? Requirement: Cemetery.
Cassie: Ali, if you wanna come with my kids and I, the next time we go to the graveyard to watch the sunset and leave flowers I will let you know!
Ali: No thank you.
Cassie: Thank you for listening to our podcast. Make sure to follow us on Instagram and TikTok. We are at Agents Unfiltered. Have a lovely day.