You're the best, you really are! That's the perfect and proper solution. You see it clearly. So do I. So do a few others.

It took me about 1500 words to say what you did in a couple of really hilarious paragraphs.

Of course, there is always the possibility that for your apparent reckless nonobservance of, and disrespect for The Law, you, too, may be characterized as a lawless and reckless person, a walking E&O claim. Wait for it, wait for it. Nah, don't.

We ain't worried girl. That's why we got the notarized letter. OMGOMGOMG.

I am not misleading any dance, thank you very much! As agents for a disclosed principal we have a fiduciary responsibility to our client (the principal). In California, you cannot dispose of personal property if it has a value of $300 or more. It is our responsibility to inform our clients of this law. In much the same way we would not allow them to make it a part of our marketing strategy to say "whites only" or "no families" or "retirees only", if not in a senior community or some other prohibited discriminatory practice. Whether we agree with a law or not. Your failure to act in accordance with the law and lay the responsibility of your actions, when you knew better, at the feet of your client will not keep you out of legal trouble. It's based on a what a reasonable person would do. Would a reasonable person allow another to take an illegal action without informing them of the illegality of their action.

I have provided the statutes regarding personal property and you're blowing it off. You're arguing with that, not me. As I pointed out the AMC and the broker do not have the authority to do an end-run around the law, regardless of what you or anyone else thinks. My analogy to running a red light holds. You can get away with it, it doesn't make it legal.

Linda had a set of written instructions, regardless of where they came from. Those instructions were changed at the convenience of the broker, not the AMC or the AM. The broker lied to the AM about what was going to happen with the personal property. It doesn't matter if it were silverware, or a boat or a Ford Pinto, if it had a value of $300 it can't be disposed of in any other method other than prescribed by law. Did you see some loophole in the law regarding the value? I didn't.

Linda contracted to do a specific job that conformed to applicable standards. The contract was moot when it violated public policy (the statute). Any contract will be void when it violates the law. In other words, there is no longer a contract.

You did not answer my questions. No one has answered my questions and I've let it slide. What you have suggested is that Linda should just go with the flow and the broker has the authority to do whatever. I will again point out the obvious, the broker lied to the AM. If the person who owned the boat wanted it back who do you think the AM and the broker would point their fingers at? Linda. When the AMC is dragged into court to recover the value of the personal property what do you think their attorneys will say? They will say...we provided written instructions and those instructions were not followed. The broker and the AM will have a convenient lapse of memory as regards this transaction.

Contractual dispute? No way.

See? That's where that notarized letter from the borker comes in REAL handy.
I'm not disagreeing with any of you. Personally I don't see any problem with making the boat the brokers problem if you CYA.
We have these little disputes all the time in our office between trash out crews and brokers. The brokers always win. Arguing about it will only hurt the trash out crew in the wallet. There are plenty of them dying for business. Just CYA and go on about your business. That's all one can do really.

I never said that, now who's twisting? I did say that you were leaving yourself open for an E & O claim. That is true. From where I sit you are. You are apparently okay with that. I personally don't like taking on undue liability, like the possibilities of being involved in a lawsuit don't exist in real estate. Do you want to know something? You can be right and still get sued. You can be wrong and get sued. It doesn't initially matter what happened, you can get sued. If you're going to get sued, it's best to have the law on your side as opposed to arguing it's not germane to what it is that you do.

CanDo. I believe DueDiligence was talking about MadHatter's response. She just didn't quote her, which would have made it clearer.

I hope you guys don't mind but I'm just being an observer for the moment. I'm transferring all my job files to an external drive for archiving and haven't been able to post much due to the fact that I have to watch for duplicates during the transfer.

I have to say that, while it's hard for me to watch the two of you fighting over this, CanDo and DueDiligence are both giving me new things to think about and I appreciate it.

Linda

I believe that I have it right Linda. Hatter didn't refer to E & O and I did. Whatever, the bottomline is each of is going to do what each of us is going to do. The phrase that comes to mind is situational ethics. There are clearly two camps of thought. One camp says that you do what the AMC tells you to do, cause you're covered. The other camp says you do what the law requires. Sometimes what is expedient is at odds with what is legally mandated. My main thought with DD is that falling back on saying I was only doing what I was told to do isn't a legal defense. I hope that none of us ever find that out first hand. It would be an expensive lesson.

Okay, I think I got it. I thought she was responding to, and poking fun at, MadHatter, whose response brought a smile to my face, too.

I agree wholeheartedly about expensive lessons, CanDo, and sincerely hope none of us ever has to have that experience.

In a litigation-happy world, it's often the issues we think are inconsequential or minor that end up getting us in the most trouble and we can hang ourselves without even knowing we are.

I believe, for the moment, I'll just follow my instincts and let the bank be the one tell me to keep my nose out of it. If that's their decision, I'll respect it.

Linda

[quote=MadHatter. We have these little disputes all the time in our office between trash out crews and brokers. The brokers always win. Arguing about it will only hurt the trash out crew in the wallet. [/quote]

MadHatter. I've never argued with a broker since I started this business. This is my first experience with a situation like this.

Does this really happen often?

Linda

Linda contracted to do a specific job that conformed to applicable standards. The contract was moot when it violated public policy (the statute). Any contract will be void when it violates the law. In other words, there is no longer a contract.


That first sentence is high-sounding authoritative, but means nothing. The second sentence again makes an assertion, but there is no foundation given. How did the contract violate the statutes? By what action did it do that?

Again, you don't know that anything or anyone violated the statutes or intended to do so. That is your assumption. All you know is that the Broker changed the nature of the contract. THAT act, in and of itself does NOT violate statutes. It is not, on it's face an illegal act under the statutes. You do NOT know what the Broker was going to do with the boat. WHEN and HOW were the statutes violated? You've again made a statement without foundation. Linda is NOT the only keeper-to the statutes, and certainly not ex-officio. In some of your posts you did admit that the Bank (current owner) is responsible for the statutes being observed. That still holds.

I'm not blowing off your recitation of the statutes, I'm discarding your attempt to bring them in at a juncture where they are not a defense or a hammer. They are not germane.

am not misleading any dance, thank you very much! As agents for a disclosed principal we have a fiduciary responsibility to our client (the principal). In California, you cannot dispose of personal property if it has a value of $300 or more. It is our responsibility to inform our clients of this law. In much the same way we would not allow them to make it a part of our marketing strategy to say "whites only" or "no families" or "retirees only", if not in a senior community or some other prohibited discriminatory practice. Whether we agree with a law or not. Your failure to act in accordance with the law and lay the responsibility of your actions, when you knew better, at the feet of your client will not keep you out of legal trouble. It's based on a what a reasonable person would do. Would a reasonable person allow another to take an illegal action without informing them of the illegality of their action.

What's this all about? Are we now talking about the Broker's responsibility to the Bank? If so, let's start another thread. Once again, you're on a soapbox and bringing in extraneous and long-winded distractions. This is not about the consequences the Broker may face IF he is undertaking to mal-dispose of the boat. It's quite wonderful that you know all that, as most of us do-- but again, you're wool-gathering, off-point and holding forth in an attempt to distract from the fact that you have no case. It's not working. It's not to the point.

Why don't you take that foregoing paragraph you wrote about agent's duties and apply it to Linda? Make your case where it lies. Linda's duty as a trashout person. What exactly does that mean? What is her scope? If it's to do with the below quote, that's exactly nothing to stand on. Zip, nothing. An excuse, not a point of law.

Would a reasonable person allow another to take an illegal action without informing them of the illegality of their action.

The answer is yes, unless that "reasonable person" is you, from what I can observe. A reasonable person would not jump in between a person with a gun and the intended victim and tell the shooter the illegality of their potential action. And, it could be said, that in her scope as the vendor to the Broker contractor, Linda was unreasonable or at least ill-advised to overstep that relationship by tattling to the Bank with no real evidence to support her contention. The reasonable person test, as applied here, sorry to say, is that a reasonable person would assume that the Broker knew the law.

Did you see some loophole in the law regarding the value? I didn't.

Did you see that Linda positively stated that the boat had a value of $300? I didn't. I saw that you seemed to know by reasoning that any boat is worth more than an aluminum fishing boat without a motor. That's your rationale. Is that what you're basing the value on? The aluminum fishing boat proffer?

You did not answer my questions. No one has answered my questions and I've let it slide.

I've answered your questions as I could identify or intuit them-- they've been very scant, but you've not liked my answers. Mostly you've made statements and assertions that I've challenged. It's very possible that the people you've so kindly let "slide" didn't see any questions, just statements.

Linda had a set of written instructions, regardless of where they came from.

That's a doozie, it really is. It does matter where they came from because it establishes with whom she was contracted, it establishes who directs her. And, it should really matter to you because you've stated that, in your opinion, the contract violated statutes. Now, if it doesn't matter where her instructions came from, who ya gonna call?

I'm telling you, you're painting yourself into a corner here.

Your final paragraph lacks the reality of how that scenario would play out in the real world, and not the world of theory. In court, Linda's attorneys would produce witnesses to the effect that the Broker disallowed Linda to haul away the boat. That further there was a public altercation (if I remember correctly), and finally that she did not perform the trashout. Again, we have to deal with the facts as Linda presented them, and not add extraneous suppositions.

Linda...not ALL the time but there have been instances where the trash out crew wanted to take something and the broker insisted it be stored for XX amount of time because of the value.

Who cares about E & O? I have a notarized letter saying the boat is not my responsibility. That's all I care about. If someone else decides to do something shady....that's on the to defend. I can't stop them but I CAN CMA.

I agree with DueDiligence's analysis. Apparently DD has attended law school, but likely has not passed the bar exam, since DD stated that he/she is not an attorney.

"The reasonable person test, as applied here, sorry to say, is that a reasonable person would assume that the Broker knew the law".

Exactly, and as I stated earlier, this is why the banks assign the BROKER as property manager. Whether the broker actually acts in accordance with the law is a matter between the broker and his client, the bank, and ultimately the state RE licensing authority. the PP vendor has no direct interest in that relationship.

No, she doesn't have a direct interest, but any member of the public is free to, and should, bring a complaint against a person licensed by the state and bound by the Code of Ethics if they suspect an impropriety.

How would this argument unfold if Linda were said broker's neighbor who saw him bring the boat home and found out he got it from one of his properties. Said neighbor would be within his rights to find out who owned the property and make a call just to ensure that there was no monkey business going on.

I am not so much worried about the legalities of it as I am the public's perception of Realtors who keep swiping (rightly so or not) property from their listings.

And if the bank did allow him to take it, it may be construed as compensation for real estate services whether or not it is in the listing agreement as such. This opens a bunch of new doors to be concerned about - whether the compensation has been handled per state licensing laws, tax fraud, etc.

I just don't know why a professional would be so desperate to get their hands on a jankety ol' boat that they would open this can of worms. Just go buy yourself a boat already. And if you can't afford it, then you need to be working and not out on a boat somewhere.

Just my $.02.

Linda---do you know what happened to the boat? If it is removed, do you know what the broker did with it? All of the conjecture surrounding the boat really is pointless if it is being held properly or still sitting at the property. I would be surprised if you knew for a fact what happened with the boat since you withdrew from the situation.

And if nobody knows what happened, can you really file a complaint against the broker? It's just conjecture. We also can't go ranting and raving against the broker. Maybe he DOES know the law and is handling the disposition of the boat himself. Everybody seems so quick to destroy the broker when nobody knows what he has done with the property. Maybe his ultimate goal IS to keep the boat, but he's following all of the correct procedures in order to do so (or return it to the rightful owner). What if the owner DOES NOT WANT the boat?? I'm curious what the responses would be then. There's so many unknowns with regards to what the broker knows, what his actions really are, and what he would like to do that it is very unfair to attempt to characterize them (or him).