Everybody’s a Lawyer
Back in the 90’s, there was a commercial where a famous actor, I can’t remember who, was pitching a product. His opening line was “I’m not a doctor, but I play one on TV”. This was supposed to give him some credibility about the medicine he was endorsing. In my line of work as an attorney, I often feel like some of the people I come across in a transaction live by the same credo – “I am not an attorney, but I play one in this transaction”. Whether intentionally or unintentionally, the different players in a real estate deal find ways to play the role of attorney, going so far as to draw legal conclusions that can be harmful to the client. The worst part is that sometimes, when I try to correct the offender, my efforts are not well received. Two recent examples.
I represented a couple purchasing property in the Florida Keys. They had signed the contract prior to forwarding it to me to handle the closing. The property is on the Gulf so it is rather pricey. Both brokers were involved in the preparation of the contract, which was a FAR/BAR form. The parties had agreed that the Buyer would pay all of the Seller’s closing costs. One of the brokers had made a handwritten change that simply said “real estate taxes” under the list of Seller expenses. The contract was signed electronically via Docusign. Nobody changed the tax proration paragraph. When we prepared the closing statement, we put all of the Seller expenses except the broker commission on the Buyer’s side and we prorated the taxes. The Seller’s broker objected, claiming that the Buyer was to pay real estate taxes. I did not read the contract that way, because in Florida, 2017 taxes aren’t due, and there were no back taxes due, notwithstanding the handwritten change. Further, the taxes were to be prorated and no changes were made to the proration paragraph. I checked with my client and he said he was unaware that he was to cover the Seller’s share of the 2017 taxes. No one had explained that to him.
The Brokers insisted that the changes to the contract were correct when a simple change, deletion of the proration paragraph would have done the job. The Brokers, both experienced, were very upset that my client was changing the deal and that I was giving him the power to do so. But the fact was, at best, the Brokers created an ambiguity in the contract because they did not consider all of the terms in the contract and attempted to modify the pre-printed terms and took a short cut. In essence, they played attorney, and did not do so very well.
On another deal, a client purchased a large tract of land in Orlando last year. The property was legally described as 5 separate lots. As part of the development of the property, we re-platted and legally described it as 2 separate lots. During this process, the client entered into a contract to sell a portion of the smaller of the son to be platted lots. The closing occurred days after the plat was recorded. We knew at the time that this might cause some confusion down the road for those searching the deed and therefore, we used both the old legal description and the new platted legal description when we recorded the deed.
Recently, we learned that the Orange County property appraiser had listed nearly two thirds of the overall property as owned by the buyer of the property the client sold. This was an obvious mistake. So, after a couple phone calls, the inquiry made its way to the chief mapper in Orange County. He revisited the deed and concluded that our deed was not correct and “directed” us to record a corrective deed. This is a legal conclusion that the mapper is not qualified to make. But before I called back, I circled back with my title underwriter and surveyor just to make sure that I hadn’t missed anything. I didn’t. While this matter has not yet been resolved, I had to advise the mapper that if he could not agree with our surveyor, we would not accept his conclusions nor would we act on his directive. Therefore, we would only deal with the property appraiser’s general counsel.
I could probably write pages of stories like this. Clients can be the worst offenders. Sometimes, the best strategy is to grin and bear it. But, the line in the sand is that no decision can hurt your client or your client’s cause. And then, please listen to your lawyer. We don’t just play one on TV!