SPECIAL SECTION
C o Oufn sel
Take a sneak peek at the type
of expert attorney advice you
can expect during the courses
and workshops off ered at the
2018 Real Estate
Legal Summit
• Inclusionary zoning
• Medical marijuana
• Unlicensed practice of
law
• Advertising and social
media copyright
Across The Line
It’s a crime, and REALTORS® who cross the
legal-advice line are also at great risk of
financial liability and very angry clients
Lew Oliver
2018 Real Estate Legal Summit Class Instructor:
“Unlicensed Practice of Law and Language Draft ing”
The unlicensed practice of law by Florida REALTORS® is a relatively
common topic and source of threats, but it involves relatively few actual
cases of criminal prosecution. To be sure, the unlicensed practice of law
in Florida is in fact a crime, complete with possible jail time and fines
and criminal record, but the far greater threat to REALTORS® who cross the line of
legal advice is financial liability and very angry clients, not a jail cell or a criminal
record.
Some REALTORS® may fear hypothetical roving bands of mad dog-attorneys
hunting in the dark of night for unwary REALTORS® to sue or to file criminal
complaints against, who may have accidentally off ered minor legal opinions to
their clients. However, the reality is that very few lawyers go actively looking for
REALTORS® who encroach into the sphere of legal advice. Most of us real estate
attorneys are plenty busy enough without worrying about competition from
REALTORS®. We have better things to do than harass REALTORS®!
Rather, the greatest danger to REALTORS® in the arena of unlicensed practice
of law is from clients who may be damaged by taking poor advice; from brokers
who may be angry at the potential legal exposure; from errors and omissions carriers
who might refuse coverage if complaints are made; or from FREC if a client
or other REALTOR® complains. Those threats are very real and are not uncommon.
And if any of those disgruntled parties hire legal counsel, the REALTOR®
may then also face scrutiny by an attorney.
Very few REALTORS® are careless (or bold) enough to off er elaborate legal
opinions on legal disputes or purely legal matters, or to explain what a statute
or a non-Florida REALTORS®/Florida Bar contract says. But it is relatively easy for
REALTORS® to stray across the line on matters that might APPEAR to be within
the scope of REALTOR® expertise.
The following are some examples of situations where I regularly see even very
experienced and cautious REALTORS® cross the line:
• Off ering opinions about who is entitled to a deposit in a dispute;
• Interpreting a loan commitment or loan approval document;
• Attempting to explain a lender closing document;
• Trying to explain FIRPTA withholding and Buyer FIRPTA Aff idavits;
• Trying to draft escrow agreements at closing;
• Off ering an opinion on tax treatments of profits;
• Trying to explain the financing clause of the contract; and
• Interpreting the meaning of Section 5 of the Florida REALTORS®/Florida Bar
contract.
> Lew Oliver, Oliver Title Law, will be presenting “Unlicensed Practice of Law and
Language Draft ing” at the 2018 Real Estate Legal Summit on September 8 (visit
orlandorealtors.org to register). He can be reached at oliver@olivertitlelawcom.
10 Orlando REALTOR® July / August 2018
/orlandorealtors.org
link