Westminster, CO asked in Real Estate Law for Colorado

Q: I bought my condo based on the MLS listing it had central a/c, only to find out 3 months after closing it doesn't.

I hired my broker based on his expertise with first time home buyers. My inspector sent an email to both me and my agent warning that the unit had no a/c despite the online and MLS listings. I never saw the email, and my agent sent me a text telling me the inspection came out "pretty clean." The thermostat had both Heat and Cool settings, and I brought up the necessity of a/c with the balcony facing west. My broker failed to tell me that the unit had no a/c before closing when we could've done something about it. 3 months later it cost me $8100 to install. Do I have recourse against my broker and the listing agent? The unit was owned and listed by Zillow.

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1 Lawyer Answer
James A. Greer
James A. Greer
  • Boulder, CO
  • Licensed in Colorado

A: Dear Purchaser: Your inquiry has to do with real estate negligence or malfeasance.

As to BUYER AGENT: if it were the case where you were NOT sent the Inspector's Report from your Agent or your Inspector, you would have an argument. However, insofar as the Agent will be able to show that you were recipient of the Inspection warning that there was no Airconditioning Unit, your case of Agent Negligence is significantly diminished. In other words, you'll be asking the Mediator (and then the Arbitrator if you go that far) to forgive your failure to review the email and instead hold the Buyer Agent liable for not discussing the email with you. Buyer Agent may successfully argue the fact on the fact that you were recipient of notification about lack of a/c and likely prevail against the argument that a Buyer Agent has the further duty to discuss the email with you.

As to SELLER AGENT: a claim against the third party agent (i.e. you are not in privity of contract) can only be based on fraud / misrepresentation rather than breach or negligence. For example, if your Inspector had never advised you about the air conditioner one way or the other, then perhaps you could carve out a claim for fraud as against the Seller Agent. Here, though, the notion of fraud is negated because you are marshaled with knowledge of the email you failed to read ("knew or with reasonable diligence should have known") regarding notification of the lack of Airconditioning unit, and so the Seller Agent will likely prevail as against your claim of fraud.

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