The Fives Series

Five things that Real Estate Agents should know about the law

Agents may be surprised at how often their actions are analysed by solicitors when property deals go wrong and court proceedings are being considered.

Here are five things for Agents to know about suing and being sued:

1.Litigation is stressful, time consuming and expensive for all parties-win or lose. Avoid saying “bring it on” however righteous you feel.

In litigation the goal posts shift regularly, instruct a lawyer (or your insurer) early to take statements and secure any documents.

It would be great if litigation was like boxing and after a few three-minute rounds one person was declared the winner. It is not.

2.Generally, courts try to return the claimant to the position they were in before they suffered the loss which, for a lot of people, is not so great. However big your mistake your opponent will probably only be compensated for his loss. Therefore however much sabre rattling goes on his lawyer will probably be advising him not to sue unless necessary.

3.Before commencing proceedings a solicitor will still want to send a warning letter to the other side, take statements and do a lot of messing about called solid preparation. However, if the matter is urgent, for example, you continue to defame someone when they ask you to stop, or they think you are going to release money without their consent the case can be in court the following morningwith or without you andan interim injunction may be ordered until the case can be heard. Do not spook the other side into taking urgent action.

4.Mediation is all the rage and very successful. It is not brain surgery. A mediator is selected by the parties, or the court, and meets with the parties and their lawyers. The mediator is not there to judge but to hammer out a compromise.

5.There is a thin line between tight competition and defamation. Bad mouthing the competition is defamation. Write it down and its libel. Say it and its slander. If you must defame your competitor choose slander because it’s harder for the other agent to prove what you actually said. It is not enough to insult a competitor agent to their face—someone else needs to hear to make it defamation. It needs to be ‘published’.

What if you are the person who has been defamed? Defamation proceedings are expensive, so after the initial upset you may think of other more important ways to spend your money. Be satisfied with an apology which can be demanded by way of a solicitor’s letter. If you have defamed someone then go to your lawyer who will probably advise you that it is best to apologise and move on. For once, just do what your lawyer says.

If you have been complaining about lawyers for years then you will be pleased to hear that we lawyers will be there for you in your hour of need and at reasonable rates too.

Paul Brennan practices in MooloolabaQueenslandAustralia (617 5444 2166). His new book “The Law is an ass-make sure it doesn’t bite yours!” is published through . Ask Paul to speak at your company or organisation.