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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MY MOTHER, THE GRAMMAR TEACHER, WOULD BE SO PROUD: We Have Our Own "Comma" Case

By Portia B. Scott, J.D., L.L.M. • July 22, 2026
One of the most absurd things for law students to grasp in that all-important first year, is the idea of what can be considered "ambiguous." (Ambiguity is "an uncertainty of meaning or intention, as in a contractual term or statutory provision.") If language is deemed "ambiguous," what happens next depends on where this ambiguity is found. The ambiguity can be subject to interpretation of a Court - if it is in a statute. If the Court has to use interpretation, there are several tools they can use to derive meaning and intent from the writers of the statute. This search for "Legislative intent" is sometimes easy if there is a part of the statute stating specifically what the Legislature was trying to do. Without that, however, judges will look at what the plain and simple language would mean. If that does not help, then they can look at the surrounding language, the other terms, what might be excluded, what would make the language harmonious with the other laws on the topic... All kinds of factors are examined to determine what the law is trying to say. However, if the ambiguity is found in a contract, the options are different and depend on whether the ambiguity is an obvious mistake ("Art is the Buyer" and then, later "The Buyer, Bert" is written in the same contract) or whether it is a more sneaky ambiguity. Here is where the comma comes into play. The Tariff of 1872 misplaced a comma, resulting in fruits not being subject to the tax. The tariff was trying to say that fruits and fruit plants would be subject to the tariff, but, by placing a comma where it did not belong, fruits become tax free and only fruit-bearing plants were subject to the Tariff. Another is a case where there would be no overtime payments for work done for "...drying, marketing, storing, packing for shipment or distribution" of foods. Because there was no comma between "shipment" and "distribution," the Court found it questionable if "shipment and distribution" were one joint act or two separate ones. The result? Workers got their overtime payments. Now, we have a case, decided July 22, 2026 by our appellate court, that a comma found between "construed according to the laws of the State of Florida" and "with venue in Collier County," created an ambiguity allowing venue to be set in another County (Martin). The comma controlled and there is an ambiguity, allowing the action to be filed in Martin County, rather than Collier. The benefits of filing in one county verses another, well, that would be an entirely different article.  Just remember: Watch those punctuation marks folks! Ambiguities may be found everywhere!

Gloves are Off!

By Portial B. Scott, J.D.,L.L.M. • May 31, 2026
Appellate Gloves Are Off: Warnings Appear to Be Over with Our Courts Over Unverified Artificial Intelligence Arguments and Filings This is the third straight article I have written on this topic - but things keep moving and changing. In my first two articles on this topic (the use of Al in Court filings), I explained that our appellate Court (the "4th") has been issuing warnings about the use of Artificial Intelligence in drafting and filing papers with the Court if the Al is not double-checked against reality. In those articles, I explained that the 4th was giving warning after warning against filing unauthenticated Al-generated motions, petitions, appeals, complaints, briefs, memoranda of law. Now, in three separate rulings on May 27, 2026, the 4th has stopped issuing warnings and has started imposing sanctions and, for attorneys, referrals to the Florida Bar for disciplinary action. In the first case,a self-represented litigant was found to have abused the courts. by filing some 90 Al-generated motions against his former wife. The 4th observed that the arguments made in his appeal to the 4th were not based on actual cases, rules of procedure or, if they were actual cases, such arguments were not found in those cases. As a self-represented litigant, the 4th cannot refer him to the bar for discipline. So, what can the 4th do? They can prohibit him from being able to file any more papers in our courts without having a Florida Bar -licensed attorney sign off on the papers. This is a drastic sanction since access to the Courts is of such high value in America. We want people to have access to the Courts - so they don't settle their disputes at high noon in the middle of the street with firearms or have it out with brawls. The idea behind requiring such sanctions is that an attorney will think twice before endangering their right to practice law. The attorney requirement is expensive, too. Still, when a litigant abuses the courts system, there must be some way to safeguard the integrity of the Court. The idea of an attorney cherishing their rights to practice, however, may not always be 100% accurate. (See below) The second case involved an attorney who filed an "emergency" motion, citing cases which do not stand for the concept of what the attorney claimed. By way of example of what I mean, if the attorney claimed that Roe v. Wade stands for the proposition that income tax is unconstitutional, that would be claiming something that just is not so. Importantly, it is verifiably not so. One need only look at the Roe v. Wade decision to see it is not correct. The 4th said that, whether the case is misrepresented as meaning something it does not or even does not exist at all, it does not matter. Both are equally wrong. The attorney was reported to the Florida Bar for disciplinary inquest. in the third case, an attorney filed a brief which included references to what has happened at trial and quoted from the transcript of the trial. However, since appeals ususally have to have a copy of the transcript included when the appeal is filed (so the 4th can read what actually happened and not just take the filer's word for it), it soon became obvious that what the attorney said had been said in Court was not true. This might have been a result of poor prompting by the attorney to the Al or intentionally misdirecting the Al. It also could be that the transcript of the trial was fed to Al and Al misunderstood what had happened - due to not understanding fully the meaning of certain legal terms. On top of that, Al also "hallucinated" legal authority and the attorney filed it with the 4th, even apparently invoking some of it in oral argument before the 4th, doubling his sins. In the end, how it happened did not matter. The 4th found that the lawyer cited imaginary legal authorities as if they were law and the 4th reported him to the Florida Bar for discipline action, putting his law license in jeopardy.  I want to make it clear: the 4th does not prohibit the use of Al in filings, but everyone must ensure that the citations to legal authority, the statement of the facts and all manner of statements are accurate, real and not the figments of Al's desire to provide a winning argument at the cost of truth.