CopyCited 12 times | Published | Florida 4th District Court of Appeal | 27 Fla. L. Weekly Fed. D 2584
...uyer will agree to financing terms other than those offered, or of any other information requested by a party to remain confidential. 7. Any additional duties that are entered into by this or by separate written agreement. (emphasis added). See also § 475.278(2)(a), Fla....
...under the Disclosure Agreement in an action for breach of contract. Similarly, appellants may have had a valid claim for negligence. REMAX's duties to Read as transaction broker not only exist by virtue of the written Disclosure, but are codified in section 475.278, Florida Statutes (1997), which provides for the limited duty of confidentiality....
CopyCited 4 times | Published | United States Bankruptcy Court, S.D. Florida. | 2009 Bankr. LEXIS 3531
...rokers or licensees. Tim Elmes is an independent contractor of, or was otherwise affiliated with the Debtor. The Amended Complaint included counts for 1) negligent misrepresentation against both SOL LLC and Tim Elmes, 2) violation of Florida Statute section 475.278 against SOL LLC and Tim Elmes (in that each allegedly violated a duty to disclose all known facts that materially affect the value of residential real property and are not readily observable to the buyer, and against SOL LLC for its alleged failure to supervise its employees compliance with that duty), and 3) violation of Florida Statute Section 475.278 against SOL, LLC for failure to provide Hayim with a requested accounting regarding the $1,532,500.00 (approx.) deposit being held in escrow by the Debtor....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2014 Fla. App. LEXIS 15284, 2014 WL 4852897
..., and Silver, through Grouper
Financial, entered into a written agreement regarding the four vacant parcels to
their own benefit without including Mana.
Mana alleged that Metro, Cho, and Silver breached their statutory duties to
Mana under section 475.278(2)(a) of the Florida Statutes by failing to deal
honestly and fairly with Mana and by failing to exercise their skill, care and
diligence on Mana’s behalf. Mana also alleged that Grouper Financial and Silver
conspired with Cho and Metro to assist in the commission of the violations of
section 475.278(2)(a).
In the complaint, Mana sought “compensatory damages equal to the value of
lost business opportunity ....
CopyCited 2 times | Published | District Court, S.D. Florida | 2013 WL 5568726, 2013 U.S. Dist. LEXIS 147274
...Eaker,
837 So.2d 348, 353 (Fla.2002). Defendants argue that they were not Plaintiffs’ fiduciaries and therefore did not owe them any fiduciary duties. Although the common law did recognize a fiduciary relationship between transaction brokers and their clients, Florida Statutes §
475.278 replaced the common law fiduciary duty with a more narrowly-defined set of statutory duties....
...Realty Execs.,
971 So.2d 138, 140 (Fla.Dist.Ct.App.2007). The statute reads: “A transaction broker provides a limited form of representation to a buyer, a seller, or both in a real estate transaction, but does not represent either in a fiduciary capacity or as a single agent.” Fla. Stat. §
475.278 (2). It also states: “It shall be presumed that all licensees are operating as transaction brokers unless a single agent or no brokerage relationship is established, in writing, with a customer.” Fla. Stat. §
475.278 (l)(b)....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal
...iations between the seller and the buyer,' unless 'the seller and buyer intentionally exclude the broker from the negotiations.' " (citation omitted) ); Burchfield v. Realty Execs. ,
971 So.2d 138 , 140 (Fla. 5th DCA 2007) ("In summary, we hold that section
475.278, Florida Statutes, replaces the common law fiduciary duty owed by a transaction broker to its clients with a more narrowly-defined set of statutory duties.").
CopyCited 1 times | Published | United States Bankruptcy Court, M.D. Florida
...and who receives, expects, or is promised any compensation or valuable consideration, directly or indirectly therefor. . . . FLA. STAT., Section
475.01(1)(a) (2003). Furthermore, the "Brokerage Relationship Disclosure Act", see FLA. STAT., Section
475.2701 (2003), allows for "no brokerage relationship[s]". FLA. STAT., Section
475.278(4) (2003)....
CopyPublished | Florida 5th District Court of Appeal | 2007 WL 4207101
...LAWSON, J. Denise and Robert Burchfield appeal the final summary judgment entered in favor of Realty Executives on the Burchfield's claim for breach of fiduciary duty. We affirm. This case presents two narrow issues of statutory construction involving section 475.278, Florida Statutes. Enacted in 1997, this statute creates a presumption that all Florida real estate licensees "are operating as transaction brokers unless a single agent or no brokerage relationship is established, in writing, with a customer." § 475.278(1)(b), Fla. Stat. (2006). The statute further provides that "[a] transaction broker provides a limited form of representation *139 to a buyer, a seller, or both in a real estate transaction but does not represent either in a fiduciary capacity. " § 475.278(2)(a), Fla....
...(2006) (emphasis added). In lieu of a general fiduciary duty, the statute sets forth specific duties that a transaction broker owes, including, for example, the duty to deal honestly and fairly, use skill, care and diligence, and maintain limited confidentiality. § 475.278(2)(a), Fla....
...Stat. (2006). The Burchfields sued Realty Executives solely under a common law theory of breach of an implied fiduciary duty, and argue two reasons why this cause of action should have survived summary judgment notwithstanding the express statement in section 475.278 that a transaction broker is not a fiduciary....
...ciary duty. [1] Second, the Burchfields argue that the statutory presumption that Realty Executives were acting as transaction brokers should not apply in this case because Realty Executives failed to provide them with a statutorily-required notice. Section 475.278(2)(b), Florida Statutes, requires all transaction brokers to provide a "separate and distinct disclosure document" either at or before the time of "entering into a listing agreement or an agreement for representation or before the sho...
...r occurs first." The document is required to "advise customers of the duties of limited representation" owed by a transaction broker. Id. It is undisputed that Realty Executives failed to provide the Burchfields with this disclosure statement. Under section 475.278, however, the failure to disclose does not affect the statutory presumption....
..."Under the principle of statutory construction, expressio unius est exclusio alterius, the mention of one thing implies the exclusion of another." Moonlit Waters Apartments, Inc. v. Cauley,
666 So.2d 898, 900 (Fla.1996). The trial court properly applied this principle to interpret section
475.278, Florida Statutes, and properly found that failure to provide the required disclosure document does not rebut or affect the statutory presumption. In summary, we hold that section
475.278, Florida Statutes, replaces the common law fiduciary duty owed by a transaction broker to its clients with a more narrowly-defined set of statutory duties....
...ils to meet the statute's notice requirement. AFFIRMED. SAWAYA and MONACO, JJ., concur. NOTES [1] In addition to the general duties set forth in the statute, a transaction broker owes any additional duties mutually agreed to with a party in writing. § 475.278(2)(a)7., Fla....
CopyPublished | Florida 3rd District Court of Appeal
...Rehearing and Rehearing En Banc Denied May 25, 2010. *56 Kluger Kaplan Silverman Katzen & Levine and Alan J. Kluger and Steve I. Silverman and Marilyn G. Kohn, Miami, for appellant. Mark A. Goldstein, for appellee. Before SUAREZ, CORTIÑAS, and SALTER, JJ. PER CURIAM. Affirmed. See § 475.278, Fla....
CopyPublished | Florida 5th District Court of Appeal
...whether the purchase-and-sale contract bars Taylor’s claims against the
brokers; if the contract does not bar Taylor’s claims, whether she has raised
a factual dispute material to whether the brokers violated the duty of honest
and fair dealing they owed to her under section 475.278, Florida Statutes
(2022); and whether the summary judgments should be affirmed on the
alternate ground that Taylor cannot prove damages.
Viewing the evidence in the light most favorable to Taylor, as we must,
we hold that the...
...As relevant in this appeal, in the operative
complaint, Taylor stated the following causes of action against the following
parties: civil fraud against Segars and Coldwell; negligent misrepresentation
against Segars and Coldwell; breach of statutory duty under section
475.278, Florida Statutes, against Segars, Coldwell, Bush, and Nicholson;
and negligent supervision against Coldwell, Bush, and Nicholson....
...issue in Billington—made the brokers third-party beneficiaries.
The court next held that Taylor’s statutory duty claim against the
brokers failed for an additional, independent reason: “[b]y its own terms, the
disclosure requirements of section 475.278, Florida Statutes, apply only to
residential sales,” and “[i]t is undisputed that the purchase and sale of
[Taylor’s] property was a commercial transaction ....
....” In the trial court’s
view, Taylor’s claim “asserts that Segars breached a duty of honesty to her
because he did not disclose that Been was involved with the ultimate buyer,”
and because “there was no duty to disclose this information under 475.278,
the failure to disclose cannot form the basis of the breach of the duty of
honesty.”
The court thus granted summary judgments to Segars and the other
brokers....
...es not bar Taylor’s
claims against them.
IV.
The brokers next argue that, at the very least, they are entitled to
summary judgment on Taylor’s claim for breach of statutory duty. They
observe that section 475.278’s disclosure requirements apply only to
residential sales, and here they acted as transaction brokers for a
commercial transaction. The brokers argue that they therefore had no duty
to disclose to Taylor that Been was the true buyer. Taylor responds that
licensees handling nonresidential transactions are exempted merely from
19
section 475.278’s written disclosure requirements....
...and
concealment, rather than simple failures to disclose.
To referee this debate, we focus our attention on the statutory text and
structure. See Forrester v. Sch. Bd. of Sumter Cnty.,
316 So. 3d 774, 776
(Fla. 5th DCA 2021) (Sasso, J.). 3 Section
475.278 authorizes real estate
3
Taylor also invites us to consider various legislative history materials
that comment on the creation of section
475.278....
...3d DCA 2017)
20
licensees to enter two types of brokerage relationships with buyers and
sellers—the transaction broker relationship and the single agent
relationship—and it prohibits them from operating as dual agents.
§ 475.278(1), Fla....
...(2022). The statute then separately enumerates, in
subsections (2), (3), and (4), the duties that real estate licensees owe when
they enter a transaction broker relationship, a single agent relationship, and
no brokerage relationship, respectively. § 475.278(2)–(4).
Under all three circumstances, real estate licensees must “[d]eal[ ]
honestly and fairly,” § 475.278(2)(a), (3)(a)1., (4)(a)1., and must “[d]isclos[e]
all known facts that materially affect the value of residential real property and
are not readily observable,” § 475.278(2)(d), (3)(a)9., (4)(a)2. Moreover, two
circumstances require delivery of written disclosures: when a licensee has a
single agent relationship with the buyer or seller, and when a licensee has
no brokerage relationship with the buyer or seller. See § 475.278(3)(b),
(Luck, J.)....
...4 Under headings titled “Disclosure requirements,” the statute
specifies, in detail, what those written disclosures must contain and when
licensees must make them. See id. It then specifies the form that these
written disclosures must take. §
475.278(3)(c), (4)(c).
Section
475.278(5) goes on to recite that “[t]he real estate licensee
disclosure requirements of this section apply to all residential sales” and “do
not apply to . . . nonresidential transactions[.]” §
475.278(5)(a), (5)(b)2.
Section
475.274, in turn, reiterates that “[t]he disclosure requirements of
§
475.278 apply only to residential sales[.]” §
475.274, Fla. Stat. (2022).
The brokers urge us to categorize section
475.278’s duty of honest and
fair dealing as a “disclosure requirement,” at least insofar as its breach might
entail a failure to disclose information. We find the brokers’ argument
unpersuasive.
At the outset, the brokers’ approach flouts the statute’s own
categorization of the various duties it imposes. As we recite above, section
475.278 imposes several duties that it expressly calls “[d]isclosure
requirements” and duties of “disclosing” certain information. The duty of
4
There is no longer a comparable written disclosures requirement for
transaction brokers; a provision that contained one sunset in 2008. See
§
475.278(2); 2003-164 § 36, Laws of Fla.
22
honest and fair dealing is not one of them. The plain text of the statute thus
makes clear that the duty of honest and fair dealing is not a disclosure
requirement.
Moreover, a consideration of the full list of broker duties set forth in
section
475.278 confirms our interpretation of the statute. For example, the
statute imposes on all licensees not only a duty of honest and fair dealing,
but also a duty of “[a]ccounting for all funds.” §
475.278(2)(b), (3)(a)6.,
(4)(a)3. And it imposes on both transaction brokers and single agents a duty
of “[p]resenting all offers and counteroffers in a timely manner[.]”
§
475.278(2)(e), (3)(a)8....
...at 917 (defining “honest” as
“honorable in principles, intentions, and actions; upright and fair”); id. at 917
(defining “honesty” as “truthfulness, sincerity, or frankness” and “freedom
from deceit or fraud”). 5
In sum, we reject the brokers’ attack on Taylor’s section 475.278 claim
for two reasons....
...claim.
V.
The brokers press one more ground for affirmance: Taylor’s purported
inability to show damages flowing from her claims against them. As the
5
We cite an older edition because section 475.278 was enacted in
1997....
CopyPublished | Florida 5th District Court of Appeal
...whether the purchase-and-sale contract bars Taylor’s claims against the
brokers; if the contract does not bar Taylor’s claims, whether she has raised
a factual dispute material to whether the brokers violated the duty of honest
and fair dealing they owed to her under section 475.278, Florida Statutes
(2022); and whether the summary judgments should be affirmed on the
alternate ground that Taylor cannot prove damages.
Viewing the evidence in the light most favorable to Taylor, as we must,
we hold that the...
...As relevant in this appeal, in the operative
complaint, Taylor stated the following causes of action against the following
parties: civil fraud against Segars and Coldwell; negligent misrepresentation
against Segars and Coldwell; breach of statutory duty under section
475.278, Florida Statutes, against Segars, Coldwell, Bush, and Nicholson;
and negligent supervision against Coldwell, Bush, and Nicholson....
...issue in Billington—made the brokers third-party beneficiaries.
The court next held that Taylor’s statutory duty claim against the
brokers failed for an additional, independent reason: “[b]y its own terms, the
disclosure requirements of section 475.278, Florida Statutes, apply only to
residential sales,” and “[i]t is undisputed that the purchase and sale of
[Taylor’s] property was a commercial transaction ....
....” In the trial court’s
view, Taylor’s claim “asserts that Segars breached a duty of honesty to her
because he did not disclose that Been was involved with the ultimate buyer,”
and because “there was no duty to disclose this information under 475.278,
the failure to disclose cannot form the basis of the breach of the duty of
honesty.”
The court thus granted summary judgments to Segars and the other
brokers....
...es not bar Taylor’s
claims against them.
IV.
The brokers next argue that, at the very least, they are entitled to
summary judgment on Taylor’s claim for breach of statutory duty. They
observe that section 475.278’s disclosure requirements apply only to
residential sales, and here they acted as transaction brokers for a
commercial transaction. The brokers argue that they therefore had no duty
to disclose to Taylor that Been was the true buyer. Taylor responds that
licensees handling nonresidential transactions are exempted merely from
19
section 475.278’s written disclosure requirements....
...and
concealment, rather than simple failures to disclose.
To referee this debate, we focus our attention on the statutory text and
structure. See Forrester v. Sch. Bd. of Sumter Cnty.,
316 So. 3d 774, 776
(Fla. 5th DCA 2021) (Sasso, J.). 3 Section
475.278 authorizes real estate
3
Taylor also invites us to consider various legislative history materials
that comment on the creation of section
475.278....
...3d DCA 2017)
20
licensees to enter two types of brokerage relationships with buyers and
sellers—the transaction broker relationship and the single agent
relationship—and it prohibits them from operating as dual agents.
§ 475.278(1), Fla....
...(2022). The statute then separately enumerates, in
subsections (2), (3), and (4), the duties that real estate licensees owe when
they enter a transaction broker relationship, a single agent relationship, and
no brokerage relationship, respectively. § 475.278(2)–(4).
Under all three circumstances, real estate licensees must “[d]eal[ ]
honestly and fairly,” § 475.278(2)(a), (3)(a)1., (4)(a)1., and must “[d]isclos[e]
all known facts that materially affect the value of residential real property and
are not readily observable,” § 475.278(2)(d), (3)(a)9., (4)(a)2. Moreover, two
circumstances require delivery of written disclosures: when a licensee has a
single agent relationship with the buyer or seller, and when a licensee has
no brokerage relationship with the buyer or seller. See § 475.278(3)(b),
(Luck, J.)....
...4 Under headings titled “Disclosure requirements,” the statute
specifies, in detail, what those written disclosures must contain and when
licensees must make them. See id. It then specifies the form that these
written disclosures must take. §
475.278(3)(c), (4)(c).
Section
475.278(5) goes on to recite that “[t]he real estate licensee
disclosure requirements of this section apply to all residential sales” and “do
not apply to . . . nonresidential transactions[.]” §
475.278(5)(a), (5)(b)2.
Section
475.274, in turn, reiterates that “[t]he disclosure requirements of
§
475.278 apply only to residential sales[.]” §
475.274, Fla. Stat. (2022).
The brokers urge us to categorize section
475.278’s duty of honest and
fair dealing as a “disclosure requirement,” at least insofar as its breach might
entail a failure to disclose information. We find the brokers’ argument
unpersuasive.
At the outset, the brokers’ approach flouts the statute’s own
categorization of the various duties it imposes. As we recite above, section
475.278 imposes several duties that it expressly calls “[d]isclosure
requirements” and duties of “disclosing” certain information. The duty of
4
There is no longer a comparable written disclosures requirement for
transaction brokers; a provision that contained one sunset in 2008. See
§
475.278(2); 2003-164 § 36, Laws of Fla.
22
honest and fair dealing is not one of them. The plain text of the statute thus
makes clear that the duty of honest and fair dealing is not a disclosure
requirement.
Moreover, a consideration of the full list of broker duties set forth in
section
475.278 confirms our interpretation of the statute. For example, the
statute imposes on all licensees not only a duty of honest and fair dealing,
but also a duty of “[a]ccounting for all funds.” §
475.278(2)(b), (3)(a)6.,
(4)(a)3. And it imposes on both transaction brokers and single agents a duty
of “[p]resenting all offers and counteroffers in a timely manner[.]”
§
475.278(2)(e), (3)(a)8....
...at 917 (defining “honest” as
“honorable in principles, intentions, and actions; upright and fair”); id. at 917
(defining “honesty” as “truthfulness, sincerity, or frankness” and “freedom
from deceit or fraud”). 5
In sum, we reject the brokers’ attack on Taylor’s section 475.278 claim
for two reasons....
...claim.
V.
The brokers press one more ground for affirmance: Taylor’s purported
inability to show damages flowing from her claims against them. As the
5
We cite an older edition because section 475.278 was enacted in
1997....
