CACI 4110 Breach of Duty by Real Estate Seller’s Agent—Inaccurate Information in Multiple Listing Service—Essential Factual Elements (Civ. Code, § 1088)
California Civil Jury Instructions CACI
4110 Breach of Duty by Real Estate Seller’s Agent—Inaccurate Information in Multiple Listing Service—Essential Factual Elements (Civ. Code, § 1088)
[Name of defendant], as the real estate [broker/salesperson/appraiser] for [name of seller], listed the property for sale in a multiple listing service (MLS). [Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed because information in the MLS was false or inaccurate. [Name of defendant] is responsible for this harm if [name of plaintiff] proves all of the following:
1.That [name of defendant] listed the property for sale in a MLS;
2.That information posted on the MLS was false or inaccurate;
3.That [name of defendant] knew, or reasonably should have known, that the information was false or inaccurate;
4.That [name of plaintiff] reasonably relied on the false or inaccurate information in the MLS;
5.That [name of plaintiff] was harmed; and
6.That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.
Directions for Use
A real estate agent or appraiser has a duty to a buyer of real estate to post only accurate information on a multiple listing service (MLS). The buyer has a right of action against an agent or appraiser for harm caused by inaccurate information on an MLS if the agent or broker knew or should have known that the information was false or inaccurate. (Civ. Code, § 1088; see Furla v. Jon Douglas Co. (1998) 65 Cal.App.4th 1069, 1077 [76 Cal.Rptr.2d 911].)
The statute provides a remedy for anyone “injured by” the false or inaccurate information. (Civ. Code, § 1088.) As a statutory remedy for a species of misrepresentation, the plaintiff must show causation in the form of both actual and justifiable reliance on the inaccurate information on the MLS (element 4). (See Furla, supra, 65 Cal.App.4th at p. 1078; CACI No. 1907, Reliance, CACI No. 1908, Reasonable Reliance.)
Sources and Authority
•False or Inaccurate Information in Multiple Listing Service. Civil Code section 1088.
•A real estate agent also has a statutory liability for negligence: ‘[i]f an agent … places a listing or other information in the multiple listing service, that agent … shall be responsible for the truth of all representations … of which that agent … had knowledge or reasonably should have had knowledge to anyone injured by their falseness or inaccuracy.’ ” (Furla, supra, 65 Cal.App.4th at p. 1077.)
•“A broker’s duties with respect to any listing or other information posted to an MLS are specified in section 1088. Section 1088 states in relevant part that the broker ‘shall be responsible for the truth of all representations and statements made by the agent [in an MLS] … of which that agent … had knowledge or reasonably should have had knowledge,’ and provides a statutory negligence claim for ‘anyone injured’ by the ‘falseness or inaccuracy’ of such representations and statements.” (Saffie v. Schmeling (2014) 224 Cal.App.4th 563, 568 [168 Cal.Rptr.3d 766].)
•“There is nothing in section 1088, or any other source of law, imposing responsibility on a seller’s broker to ensure that true statements in an MLS are not misconstrued, or to make certain that the buyer and the buyer’s broker perform the appropriate due diligence to evaluate the significance of such true statements for the buyer’s particular purposes.” (Saffie, supra, 224 Cal.App.4th at p. 570.)
•“Defendants contend there is no triable issue of fact and as a matter of law plaintiff did not reasonably rely upon the misrepresentations, and plaintiff unreasonably failed to exercise due care for his own interest as buyer. They contend plaintiff was repeatedly warned by language in the Multiple Listing Service and the sales agreement that statements concerning square footage were approximations only, and that plaintiff could obtain accurate determinations of square footage by a professional pursuant to the buyer’s right to inspect the property. But whether a plaintiff reasonably relied on a defendant’s misrepresentations or failed to exercise reasonable diligence is also ordinarily a question of fact for the trier of fact.” (Furla, supra, 65 Cal.App.4th at p. 1078.)
•“To be sure, an omission of information may sometimes render an otherwise true statement false or inaccurate, in the meaning of section 1088.” (Saffie, supra, 224 Cal.App.4th at p. 570.)
•“Absent anything untrue or inaccurate about the statement seller’s broker actually made in the MLS, and absent damage to buyer from such falsity or inaccuracy, seller’s broker is not liable under section 1088.” (Saffie, supra, 224 Cal.App.4th at pp. 571–572.)