NEED FOR REAL ESTATE BUYERS' ATTORNEY AT ALL TIME HIGH
Portia Scott • March 20, 2024

With the National Association of Realtors' Settlement of the Anti-Trust case, we wonder how will this all shake out. 

First, What is an "Anti-Trust" suit in the first place? That is right: time for a little history lesson. 


In 1890, the Congress of the United States passed the first such legislation. It was specifically aimed at curbing the immense concentration of power in private industry. The idea was to encourage competition and restrict monopolies. Just like anyone who has played the board game, a monopoly enables the person who has the monopoly to demand higher prices for whatever it is they are selling. In the board game, it is rent, but it applies equally well to oil companies, telephone companies and, of course recently, social media companies. You can get more when you are the only game in town. 


The danger of these so-called "trusts" (i.e., the monopolies) is that the entity with the monopoly has all of the power. So, in this case, a group of Sellers were complaining to the Courts that they had been charged to pay for the Agent who represented the Buyer of their house. 


The way it had been working is that the Seller of the home would hire an Agent who would list the house for sale, agreeing to pay a percentage of the eventual purchase price to the Agent- usually 6% for a house. One of the ways the "listing" agent would advertise the house was by placing it in the Multiple Listing Service (the "MLS"). 


An agent who had a client looking for a house would look at the MLS and find a few houses in their client's price range, neighborhood of interest, right number of bedrooms, that kind of thing. The would-be Buyer's agent would then look to see how much of that 6% the Listing Agent was getting from the Seller was available to the Buyer's agent. Typically, the Listing Agent would split the 6% with the Buyer's Agent. 


The Buyer's Agent would set up appointments, not only for the Buyer to see the house, but, if an offer was made to buy the house, would also help coordinate any inspections and negotiate the terms of the purchase, looking out for the Buyer's interest. 


Well, now, all that has changed. The settlement reached now prohibits the listing agent from offering any of their commission (the 6%) to a Buyer's Agent in the MLS. The idea is that, with the Seller's agent no longer being allowed to use the MLS to let the buyer's agents know what they can expect to get paid, the Sellers' Agents will charge less than 6%. This may be true; it may not. 


The Sellers' Agents may think that they will have to do their own work as well as the work which used to be done by the Buyers' Agents. They may think double the work, double the money they should receive and keep the whole 6% to themselves. This is a problem for the Buyer, though, as they no longer have an Agent on their side. The only Agent in that plan is the Seller's Agent. 

The Buyer's Agent might seek to get paid up-front before they put the work in to finding the perfect (well, the best available) house for the Buyer. 


Further, this means that Agents who used to represent Buyers, advocating for them, arranging to show them multiple houses, getting any inspections done and helping get the deal done, will face 4 options: 


1) get the Seller to pay them directly to represent the Buyer's, not the Seller's, interests; 

2) get the Buyer to pay them directly, thereby limiting the money available for a down-payment; 

3) get the listing Agent to share the commission after finding the house for the Buyer; 

4) get a new job. 


If the job of Buyer's Agent goes the way of the Dodo Bird, then the importance of having an attorney in your corner becomes of paramount importance. 


BEFORE YOU SUBMIT AN OFFER DRAFTED BY THE SELLER'S AGENT, give it to our attorney and discuss how to best protect yourself and understand the costs associated with your offer. 



The Seller's Agent is interested in getting the house sold with the very best deal for their own client, the Seller, as quickly and for as much money as possible. 


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And furthermore....

By Portia B. Scott, J.D.,L.L.M. • April 2, 2026
Another Warning from our Appellate Court Regarding Al I hate to repeat myself, but.... The March 25, 2026 release of written opinions from our own Fourth District Court of Appeal (4th DCA) has another warning to persons venturing into the Court system. As you may know, I wrote about a warning from the 4th DCA about a self- represented Appellant (person seeking to have the trial court's decision overturned) using Al and the possible, but not inflicted, sanctions which could have resulted. Now, again, in Gouveia v. Meridian Financial Investments, LLC, the 4th DCA has again written to address this increasingly abusive use of Al in the Courts. In this more recent case, there was a contract dispute and the trial court ruled in favor of the Plaintiff (the party making the complaint...get it? "Plaint-iff" based on "Com-Plaint?"). The losing side filed an appeal, asking for the 4th DCA to overturn the decision of the trial court. Well, that went nowhere and the Plaintiff kept its win. The story here is that the person who lost at trial and on appeal, in his case and appeal to the 4th DCA apparently used Al to help write his argument. The Al manufactured ("hallucinated") prior cases which did not exist or, if they did exist, did not stand for what the person said it did. It would be as if the person made reference to Roe v. Wade (a case which does exist) and told the appeals court that it stood for the legal principal that a Jack of Spades has a higher value in poker than the King of Spades (which is absolutely not what Roe v. Wade said). Is that straight-up nonsense? Yes and as absurd as that which was submitted to the appeals court as if it were true. The Court issued another warning about the possibilities of sanctions if it is done again by the person submitting it, just like before. But, as the concurring opinion in this case points out something else (a "concurring opinion" is a written opinion which agrees with the actual opinion but has more to say). The concurring opinion points out how meaningless it is to threaten sanctions against someone who will most likely not be before the Court again. That means that the opportunity to misbehave for this person is greatly reduced. Most self-represented folks only appear once -if at all- before the appellate court. The concurring opinion said that with attorneys, it is not a problem as sanctions will work against us, seeing how we are in court so often. What is the solution? The writer of the concurring opinion doesn't know but suggests some pro-active steps. (Sanctions are, by their very nature, reactive - they are issued in response to something done.) Perhaps forcing sworn statements from the parties that they have not used Al or, if they have, exactly what the Al included; that the party submitting the Al- generated document has double-checked the sources. Something which can help us all work with the rising tide of Al, Chatbots, LLM tools.  Stay tuned!

Appellate Court Issues Warning to Non-Attorneys Filing Appeals

By Portia B. Scott, J.D.,L.L.M. • March 26, 2026
The Florida trial courts' decisions are subject to appeal to a higher Court. This happens when a litigant (the Plaintiff or Defendant) believes the trial court made a mistake and that the mistake should be corrected. The mistake believed to have been made by the trial court can be based in the facts of the case ("that is not what the evidence showed"), the law ("that is not what the statute or other source of law says"), or both. A recent opinion from the 4th District Court of Appeal (which takes such claimed mistakes from the circuit trial courts in Broward, Palm Beach, Martin, St. Lucie, Indian River and Okeechobee Counties) dealt with an alleged mistake of law. The person who was claiming the mistake (the Appellant), was representing herself. Without an attorney to help her write the appeal, she resorted to Artificial Intelligence ("AI"), as we can expect many people do or might start doing. The decision came back from the 4th District Court of Appeal, disagreeing with her; the appeals court found no error by the trial court. But for the use of Al, there probably would not have been any thing actually written. The 4th would have just said something like, "we find no error." However, the Al tool had "hallucinated" what other, prior District Courts' had said. In the paperwork submitted by the Appellant, she had cited certain old cases saying that these cases were opposite of what the trial court had ruled. She claimed that the trial court had used the wrong law and that she should have won. The problem, as you might have guessed, is that the cases did not exist - some of them not at all. Other cases she cited to the 4th were actual cases, but did not say what her Al asserted they said. Here is the reason everyone needs to know this: Self-represented litigants are held to the same standards as an attorney. Obviously, attorneys are not allowed to make up old cases and present them to a Court (trial or otherwise). If we do use Al to help find the old cases, we absolutely have to check to make sure that they are real and do exist. If we do not, we can be sanctioned - maybe even having to pay the other side's attorney's fees which, for an appeal, can easily be in the tens of thousands of dollars! That is a scary prospect. The self-represented litigant could have faced sanctions - just like her attorney would have had she had one. In this particular case (Roussell v. Bank of New York Mellon, Etc., decided March 11, 2026), the appellate court did NOT sanction her, but easily could have. This was probably a decision issued as a warning to all.