I started my legal career in 1988, the same year that E&O came into existence. To give you an idea of how long ago that was, movie buffs were flocking to watch Who Framed Roger Rabbit? and Die Hard in theatres across North America during that time.

Since then, I’ve spent the past 37 years defending real estate licensees in professional malpractice claims, educating agents on how to avoid those claims in the first place and, for the last 14 years, serving as CEO for E&O, the professional liability insurer for all those agents. I’ve seen a lot and know where some of the bodies are buried!

As I’m retiring on January 31, I wanted to take one last chance to share a few of my experiences and observations with you, and say thank you for the opportunity to work with so many dedicated and engaged people over nearly four decades.

Getting my feet wet, tackling a major case

My first “big” case lasted several years, including many months in trial followed by appeals. I was junior counsel in private practice, working with Greg Blanchard, a highly respected litigator and one of E&O’s most skillful counsel. 

The case consisted of almost 50 lawsuits, all started by owners of units in a North Vancouver co-operative complex. After owning their units for many years, they were impacted by a previously unknown (to them) rent revision clause in the head lease for the land on which the co-operative buildings were located. This resulted in significant increases in their monthly maintenance payments, in some cases by about 1,700%. 

The owners sued most of the professionals involved, including their real estate agents, for not discovering and disclosing the rent revision clause, or recommending a subject clause that would have made the deal subject to a solicitor’s review of the lease and title documents.

I guess you could say we mostly lost (we won on some points). The agents working with the buyers were found liable, with the trial judge putting it simply, “a realtor ought to know the product he is selling.”

This straightforward comment stuck with me through the years. 

Two key teachings to pass along to agents

I’ve often been asked for that magic bullet that will protect all real estate agents from liability. There isn’t one.

But, there are two things every agent can do to ensure that they are not the subject of a claim against them…

• Know your product.
• Know who you act for.

The agents involved in the co-op case (and their clients) would have been spared the stress and losses if they’d known about and advised their clients about the rent revision clause. Or, since the title documents were extremely long and complex, shifted that risk by having lawyers do the reviews. Stick to your area of expertise.

Understanding the service you are providing – agency – means that you should know who your client is and thus, who you act for and to whom you owe fiduciary duties.

Improvements aplenty along the way in BC real estate

The real estate industry in BC has made profound improvements in the agency framework over the years I’ve been a part of the industry. When I first started out, there was something known as “sub-agency.” It meant that the buyer’s agent (then known as the selling agent) was a sub-agent of the listing agent, causing some confusion about who the “selling agent” actually acted for.

The industry eventually improved things by creating “assumed buyer agency” and documenting the limited dual agency role (which still had its challenges). This was followed by today’s system of designated agency, the near abolition of dual agency and clear documentation for agents and consumers that make clear who is acting for whom. 

Finding mentors and role models can be key to a successful career

When I came to E&O as a staff lawyer in 1995, I was lucky to work with Rob Stevens. Rob was the first CEO and he had the helm until his retirement in 2011. He ran a steady ship and his skill and leadership contributed immensely to the success of E&O today. He taught me a lot about the world of insurance, what makes a good leader and how to effectively run a business.

More importantly, both my mentors, Greg and Rob, were role models for professionalism, hard work and ethical and honest practice. If I could give any advice to new real estate agents, I would encourage you to find a mentor like Rob or Greg. The lessons you learn early in your career will form the type of professional you will be.

On that note, although many of the agents I’ve dealt with over the years were facing claims against them, I must say that almost all of them were hardworking, decent, honourable people. Even when a mistake was made, it was almost always inadvertent, not deliberate or deceitful as often alleged. 

Being sued or having a client accuse you of wrongdoing is very stressful for most agents. Early on in my career, after successfully defending a new agent in trial, she said to me that she was leaving the real estate world, the whole lawsuit process was just too much for her. Even after winning a trial, it was not uncommon to hear a client cheekily say, “thank you very much, but I hope I never see you again!”

Being a real estate agent is not any easy job. There are a lot of balls to juggle, and the landscape is constantly changing. Do your best to keep up with all the legislative and regulatory changes and take advantage of the resources available to you. If you do find yourself in trouble, the excellent staff at E&O are here to help you.

Now that it’s my turn to say goodbye, let me say, “Thank you very much, but I hope I DO see you again!” But this time in the dog park or neighbourhood coffee shop, not the courtroom.

Stay safe and stay out of “realtor jail”. It’s been an honour to serve you, the hard-working real estate professionals of British Columbia.