Blog Ohio Real Estate Law / 01.11.2016

Broker Open Houses — An Ounce of Prevention Is Worth a Pound of Cure

A 2015 Ohio appellant court decision out of Lorain County serves as an important reminder of the duty of care owed by real estate brokers/agents and the expensive consequences that result when communication between a real estate agent and a homeowner is imprecise.

The case in question is Wheatley v. Howard Hanna Real Estate Servs., 2015-Ohio-2196 (9th Dist. Ct. of App., Lorain Cty.), which was decided on June 8, 2015.  The homeowner, Rhonda Wheatley, listed her home through Linda Shubeck, an agent with Howard Hanna. Mrs. Shubeck scheduled an open house that targeted other realtors. However, the advertising yard signs did not include a “brokers-only” designation and Mrs. Shubeck did not inform Mrs. Wheatley that members of the public may show up during the open house. In Mrs. Shubeck’s defense, she did caution Mrs. Wheatley to secure any valuables that were out in the open in the house. She also set up her information desk for the open house at a location where she could observe the foyer.
After the open house, Howard Hanna learned of several thefts that had occurred during other open house events.  This prompted Mrs. Shubeck to call Mrs. Wheatley, who discovered that almost all of her jewelry was missing, valued over $50,000.  She blamed it on a member of the public named “Sam” who  arrived during the open house, although to my knowledge, it was never proven that the jewelry was stole during the open house, let alone by “Sam” that she alleges.
Litigation followed and the jury found in favor of Howard Hanna and Mrs. Shubeck. Mrs. Wheatley appealed. The appellate court sided with the trial court and denied Mrs. Wheatley’s appeals.
No one disputed that Howard Hanna and Mrs. Shubeck owed Mrs. Wheatley a duty of care. The jury, in looking at the facts in this case, found that the defendants did not breach that duty.  While the open house was communicated to Mrs. Wheatley as a broker’s only event, she was present during the first part of the open house, saw that members of the public showed up (including the individual named “Sam,”) without objecting, and even felt comfortable enough with the situation at the time to leave the house while he and others were still there. Further, Mrs. Shubeck expressly advised Mrs. Wheatley to remove valuables from the open and walked through the house prior to anyone arriving to confirm that nothing valuable was plainly visible. When the alleged thief, “Sam,” arrived, Mrs. Shubeck accompanied him around the house while he toured it. Finally, while Mrs. Wheatley had put her jewelry in her safe, she didn’t bother to lock it, and further never advised her realtor of the existence of the safe.
As a result of all of the foregoing, the appellate court found that credible, competent evidence was offered to show that Howard Hanna and Mrs. Shubeck did not breach their duty to Mrs. Wheatley.
While the brokerage and its agent were vindicated in this case, I’m sure the expense in defending against this litigation was substantial.  What we can learn from this is to take better care in what is communicated to homeowners. If members of the public, while not specifically encouraged, will be permitted to remain and tour the home, then the homeowner should be advised of this. Furthermore, an agent may want to question a homeowner more closely regarding what valuables are present in the house so additional care can be taken to ensure they are secured.
As the old saying goes, “an ounce of prevention is worth a pound of cure.”

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