Who Let the Dogs Out – Fox Bay Civic Assn, Inc v Creswell | Episode 30
In this episode, Cassie, Ali, and Danielle discuss the real estate case of Fox Bay Civic Assn, Inc v Creswell. This case discusses service dogs, and the owner of the home not being able to build a fence in her new yard.
They discuss what is the real estate agent’s responsibility, as well as the buyer’s responsibility when it comes to researching what needs to be done to meet the needs of the buyer. In this case, it was a fence for the service dog. Tune in to listen to the discussion!
I think that’s so much of it where agents get in trouble, like thankfully this lady didn’t, but I think a lot of agents think our only job is to do the paperwork and get them through the contract without being kind of like a detective along the way of what’s important to you? What do we need to look for? What information do you need? It’s not to overstep our role, but also at the same point in time, we’re guiding them through this process and I think sometimes agents take too far of a backseat of I’m just here to hit the timelines and write the contract.Danielle LaBar
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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.”
Hey everyone, and welcome to Agents Unfiltered, where we talk about the do’s, the don’ts, and the what the fucks of real estate. I’m Ali. This is Danielle. And I’m Cassie Day. Join the three of us every week as we deep dive into some wild real estate cases and give our take. We are not attorneys and want to make it clear that this podcast or any linked materials should not be construed as legal advice, nor is this information a substitute for professional expertise.
We are not lawyers, financial advisors, doctors, or mortgage lenders, but we are your new BFFs.
Ali: I have a story to tell you guys. We all went to IKEA because our sugar mama/managing broker, Danielle, bought us a new building, and so we had to find things to fill the building, which IKEA for us where we are located is about a four hour drive. It’s like you leave in the morning, you shop for three to four hours, and then you drive back. It’s a whole day.
On the way back someone decided to get a little frisky with me on the highway. I just had my cruise control on going 78 because you know, eight, you’re great. Nine, your mine… you don’t get pulled over unless you’re nine over. It’s a rule. So, I go in the fast lane and there’s this car in front of me, so then I just glide over to the right because I’m like, okay, obviously they’re not moving and I’m not gonna be on their butt.
As soon as I go over, they speed up so I can’t pass them. I’m just like, okay, whatever, like not a big deal because no one was in front of me and I’m just cruising on my cruise control, and then they whip in front of me and I’m like, what the heck is that about? So I go back over to the left lane and they do it again. I was like, okay, am I being cranky or is this person trying to mess with me? So then I go to the right one more time to just speed past her and get around her before this other truck, and then she speeds up all the way so that I can’t get past. So we have our little walkie-talkies…
This girl doesn’t know that we’re a girl gang on walkie-talkies.
So like I say to my walkie-talkie, I was like, I don’t know what’s up with *explicit word* lady, but I’m not gonna say what I said, but she’s about to get run off the highway and Danielle’s like, “I was watching all of it, give me 10 seconds, I’m boxing her in.”
So I’m seeing Danielle flying up like probably 95 miles an hour on the other side of me and whipping in front of this lady. Then Bekka, our transaction coordinator, is like, “hell yeah, I want in on this”, so I’m in the left lane, the girl was in front of me in the left lane, Danielle dives up on the right side, gets in front of her. Bekka drives up and gets on her side, so she’s all boxed in.
I get behind Bekka cuz I’m like, heck yeah, I’ll just follow Bekka and Danielle will take care of her so I don’t have to be messed with anymore. Mind you. This girl, every time I passed her or we got even, she would not look at me I’m like, “if you are gonna mess with me, you can look me in the eye”, and she wouldn’t. That made me upset. So I go to dive behind Becca and then there’s not very much space left and she dives in between us. I don’t know why she just wanted to mess with me so bad. She was so close to hitting both of you. It was crazy. So then I just laid on my horn.
I got back over and then I don’t really remember what happened after that because Cassie and Bekka brought up the rear and did not let it end.
Cassie: No, we did not let it end. We made sure that she was behind all of us and Bekka was holding next to Ali so that she couldn’t pass Ali again. I let Bekka in behind me and the girl was behind me at this point trying to figure out how to get around and I hit my brakes to let Bekka in and she almost swerved off the road.
Ali: She hit you?
Cassie: She in my rear view and then she swerved and corrected and she didn’t, she didn’t fuck with us after that. Mind you we were walkie talking the whole time. This entire time like with our plan. We’re in like fighter jets or something. We’re like, okay, I’m taking out the left. The best part was at the end, Danielle’s like, wow, the things that we do when our children aren’t in our car.
Cassie: So true, but she had it in for you.
Danielle: She was trying so hard and I think she scared herself at the end when she almost hit me. I didn’t do anything extreme, I just let Bekka back in front of me. Meanwhile, I’m like, if you had yourself on cruise control, you wouldn’t be going from, you know, 65 to 85 to 75. Like, just keep it kosher, keep it steady. Go the same speed, stay at five miles per hour range.
Ali: Maybe she had a weird playlist going, it was like metal, and then she was going 95 and it was like a sweet song and she was going 65.
Cassie: You’re giving her a lot of credit.
Danielle: Yeah. Screw her. I think she had it out for you.
Now on to the case…
Ali: Anyways, the case… I’m gonna talk about my case that I didn’t study at all because I never come with my cases prepared.
So, disclosure, this is a lawsuit against brokers rejected by court. It’s kind of similar to your cemetery one that you had, but not involving a cemetery.
It was decided by the Supreme Court of Montana that when it comes to boundary disputes and zoning, it is NOT your agent’s responsibility, since it’s public knowledge.
Should do your best to let them know about it? Yes, but legally in court, you can’t be held responsible for anything that happens because of that. The home buyer alleged professional negligence in constructive fraud against both the seller and buyer agents because the plaintiff said that they failed to disclose material information by not telling them about zoning limitations for a fence.
The buyer had an emotional support animal, a service dog, and they wanted to build a fence, but because of zoning requirements, they were unable to build the fence because it went into a neighbor’s property. The added layer of this is that the listing agent, it was her father-in-law’s house that she was selling. She was saying it was the girl’s negligence because she obviously had a relationship with the seller and was covering up the fact that a fence couldn’t be built there.
Danielle: How does the buyer’s agent factor into that?
Ali: I think by not looking at zoning, knowing that they wanted to build a fence because they had a dog.
Cassie: She couldn’t build a fence at all. Like, not even just closer to the house?
Ali: It didn’t say that. Maybe just the way she wanted it built. I wish that they would almost involve pictures of the properties with these, because it would make it a lot easier to figure out. I mean, I assume in a neighborhood you’re maybe touching like what, 1, 2, 3, 4, 5 properties if you’re in the middle of people, but then everywhere is set up differently, so who knows? Like if you’re on a corner lot, etc.
Danielle: Because I’m thinking like, there’s so many fixes though, like if it’s not a fence then you have like a dog run, or you have like the leads or whatever that you attach, like a fence isn’t the only route to go.
Cassie: Or you go with one of those little invisible fences, right?
Danielle: There’s other things, I don’t know. That’s so interesting.
Ali: Yeah. The district court granted summary judgment in favor of the buyer’s agent because zoning requirements are public and discoverable, kind of like with your cemetery thing, and then it was held that the plaintiff could not establish the agent owed her any duty to disclose this. Which I thought was an interesting way to phrase it, like hey they don’t owe you any sort of duty to disclose that, because it’s one of those things where we might not be able to be legally held to it, but it is good to keep in the back of our minds.
Danielle: Like if we know our client has some intention to do something, then, I mean, I can see where, yes, like it would be helpful to disclose that, but the list agent doesn’t necessarily know what the buyer wants, and unless the buyer’s agent was like, oh, I’ll look this up for you.
Ali: We can’t read minds. Let me know what you need.
Danielle: It would help, like if the buyer’s agent knew that they wanna do a fence said “Hey, I would go look up what the requirements are for fencing”, because that is something like, some people wanna do really tall fencing, you’re not allowed to. Front yards aren’t allowed to be fenced usually, but then obviously put that in writing, right? Like say, hey, here’s the link to the website. That’s really interesting.
Ali: The added thing on top of it too, is there was also water damage that happened because the area that it’s in, I guess, was kind of like a wetland area, which I know that we out here have the flood zones that we can look up or we have like protected wetlands, so this was also something that they were upset about, like on top of like the fence not being able to be built, like there was water damage as well, but it showed that it never happened until that person lived there. So it was kind of like a double whammy, I think, where they felt like they had two different things that they could go in on, but were mostly upset about the fence and maybe should have focused on the other part a little bit harder.
Danielle: Yeah, because I was going to say, if it was wetland, I could see why, like you couldn’t put fencing, right? You can’t construct things in wetland.
Chatting our personal experiences…
Danielle: But the whole, like, reading buyers minds, it makes me think of this client I had. I had this younger guy who wanted to buy a home, we looked and looked and looked, got him this great deal in a home. It was wonderful, the basement, they were in the process of finishing, so like all new wiring in the basement, but it wasn’t fully done, so he was gonna take it over. It had, I think it was like up to drywall and that was it. Two days before closing he was so upset that it’s not grounded. Like there’s not the grounding built into the main floor, but it’s an older home, like it’s just not part of it. He went through it with the inspector, the inspector told him how to remedy the whole thing, we’re almost to close and he got so mad at me because he is like, I can’t play my video games if blah, blah, blah and I just was like, I was so over it at that point.
Cassie: My gosh.
Danielle: But also, okay, first of all, I don’t know you play video games. I have no idea what you do in your free time. I don’t even have video games, so I don’t know what’s gonna work. It would never even occur to me, and so I had him chat with the inspector and the inspector said, yeah, you can get a power surge cord or whatever. It will protect your stuff, it’s not the same, but it’s similar in this whole thing, and he was so mad up until closing. He was so mad. He gave me so much attitude.
Cassie: He had an inspection done, like that would’ve been a conversation to have had at inspection of, “Hey, these aren’t grounded. I really need that.” Did he know what that meant?
Danielle: I had no idea any of this was a problem until we’re right at closing. He’s so upset with me. Like, play your video games in the basement.
Ali: Also, if I was a home buyer and I was reading through something and I didn’t know what it meant, I sure as hell would ask what it meant.
Danielle: He could have asked me, he could have asked the inspector.
Cassie: Do you know what triggered him to be upset? Like did he end up having a conversation with someone that was like, oh, it’s not grounded, then you’re not gonna be able to plug in your games?
Danielle: Honestly, I’m not sure because it was so long ago. It’s like 11 or 12 years ago. I just remember being totally outta left field about this whole video game thing and thinking if you had told me this originally even cuz we’d only been looking at older homes. At his price point, all you could get was older homes. I probably would’ve said, okay, well if you’re concerned about grounding in older homes, like we can’t, we need to look at newer homes, so we’re gonna have to figure out how to adjust your price point or wait. I don’t know. I always wonder what happened to him. He’s not somebody I put on my mailing list.
Ali: That reminds me of when I sold a home to Russell and there was no GFCI and he didn’t realize that that made it so he couldn’t work from home and plug his stuff in.
Danielle: Oh no. Sad.
Ali: And it was one of those things where, afterwards, he had to pay upwards of a thousands of dollars to rewire the whole house to make it so that he could work from home, because that was his obligation.
Danielle: He didn’t know that?
Ali: Yeah, and that was a learning lesson for me too, because if there’s something my clients potentially won’t know because it’s not as common in the old houses or whatever, I need to educate them. It just didn’t even cross my mind and it’s one of those things that I’ll always think about now, but lesson learned after it happened, but yeah, that kind of screwed up his whole thing. That poor guy had to pay the whole thing because we just didn’t know what we know now.
Danielle: And that’s the hard part. We’re not home inspectors. That’s why they have to ask questions if they have concerns or like sometimes you just don’t know. And it’s unfortunate that it’s an issue afterwards.
Cassie: There’s verbiage in the paperwork that buyers have to do their due diligence, isn’t there? Like in the contract? We can’t do all of the research that they need us to do for them. Like, I’m pretty sure it’s part of the PSA, isn’t it? The Purchase and Sale.
Danielle: It’s part of ours, at least in Washington state. I always remind people when I go through the contract with them like, this paragraph is your reminder of, ask me all the questions you have before we close the home, because once we close the house, it’s yours and there’s nothing we can do. Don’t feel like you’re bothering me, ask me all the questions, if I can’t answer them, I will point you in the right direction or send you a place to look it up or suggest you talk to someone, but you have to ask the questions before you own the home.
Cassie: Because once you do, you’re just in it.
Danielle: It’s hard because sometimes I think buyers don’t think of things, especially first time home buyers, until like, they just don’t even know to think about it until they’re a homeowner. It’s hard because you can’t prepare everybody for everything, and I tell people that too. Some things that are important to some buyers are not important to others, so it’s really hard for me to gauge what’s gonna be of importance to you. We’ve gotta communicate.
Ali: There’s also a lot of things with, I won’t say first time home buyers, cuz really it’s any kind of buyer that feels like they’re not quite sure. I think a lot of times before they come and ask real estate agents things, they ask like their dad or their family bought a house and all that, and then you’re like combating information almost. There’s been a few times where I have not said certain possibilities because every transaction, there’s a million possibilities, and it’s not like I can tell you every single one and what we’re gonna do to combat each one, you kinda have to take things as they come. I had someone the other day who was like, “Hey, I talked to yada yada, and they said that this is a possibility and I’m really worried about it.” I was like, god dang it. I was like, is it a possibility? I’m not gonna say no. Yeah, but is it likely? No.
Cassie: Oh my gosh. I had one client buy a house, and we were like halfway through the process and she realized, which I don’t know why I didn’t realize this either, that it was, that the housing development was right next to a prison in Airway Heights. She was like, so, are we moving in next to a prison? Is that safe? And I was like, oh my gosh.
Danielle: You know what’s funny about that? I sold them in a development right by there, and I remember one client coming in and I used this line so much. I mean, just kind of been joking because who knows what would happen, but he mentioned the prison and I said, oh yeah, you know, it’s over there, whatnot and he goes, well, I just figure that if somebody gets outta prison, they’re not staying around here.
Cassie: Such a good point.
Ali: You’re like, I’m keeping that line and I’m using it for anyone that asks.
Cassie: My client ended up still wanting the house and it didn’t change anything for them. It was just a funny realization moment and I was like, I did not even realize that that’s what that was right there, but now I know.
Danielle: It’s funny cuz there’s so many homes around there too. You just don’t know. Some clients care a lot about certain things and some don’t care. You never know what you’re gonna get. Sometimes it’s hard to pull things out of clients.
Cassie: True, like what are your concerns? What is important to you? Like what is a deal breaker that you may not think is important?
Danielle: I think that’s so much of it where agents get in trouble, like thankfully this lady didn’t, but I think a lot of agents think our only job is to do the paperwork and get them through the contract without being kind of like a detective along the way of like what’s important to you? What do we need to look for? What information do you need? It’s not to overstep our role, but also at the same point in time, we’re guiding them through this process and I think sometimes agents take too far of a backseat of like, I’m just here to hit the timelines and write the contract.
Ali: It’s so hard. Sometimes I have to remind myself not to get too involved because there’s the professional side of me, but then there’s the like, I wanna help you find a solution for me and they don’t always meet, you know?
Danielle: Always err on the side of the professionals.
Ali: It makes me feel guilty though, cuz I wanna be able to help them, but I’m just like I can’t, but I’ll put you in the right direction. I don’t know why I feel guilty when I do that, but I know it’s the right thing, but I just feel like I’m not helping them.
Danielle: I remember our legal counsel for Washington State, she made a comment at one point stating that’s another big issue for realtors is we tend to be helpers, and sometimes we over help. I always keep that in the back of my mind. Don’t be an over helper. But, I’m glad the agent didn’t lose the lawsuit because being sued over whether or not a fence could go up, I mean, that would be just ridiculous.
Ali: It’s kind of similar to the cemetery one, but I was like bitches wanna build fences.
Cassie: Sometimes they just can’t.
Danielle: It’s helpful to hear different scenarios. That’s not as an extreme scenario like an indigenous cemetery, but it also proves the point of like, what are we doing and what are we liable for?
Cassie: That’s the big question.