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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The Deed, the Daughter, and the Paper Trail

By Portia B. Scott, J.D.,L.L.M. • February 19, 2026
For those of you who like history, consider the study and application of law. Studying history is, effectively, 90% of what we attorneys do. When there is a lawsuit, for instance, you obviously want your client to win. The methods of winning are, of course, having the facts on your side but you also need to have the law on your side or, extremely rarely, you change the law. The first question for the attorney is, "What does the applicable statute say?" followed closely by "How have other courts handled this question in the past?" These are the starting point for an attorney, once she knows (or think she knows) what has happened. Let's take an incapacity determination as an example. The worried daughter comes in after having spent some quality time with her father over the holidays. She indicates that her dad said and did some things which made her question if it is okay for him to continue to live alone. The attorney asks questions about her father, including how long has he been living alone? Has he been diagnosed with anything? How about his physical abilities, are they impaired at all? The daughter tells us that, after his wife died a few months ago, Dad suddenly spiraled downward. This may or may not be true, though it is certainly the daughter's perception. Was his wife actually covering for him for years and did such a good job no one noticed? Maybe. We learn that father has a degree in accounting and supported himself and the family with an accounting business. Now, he does not seem to know how to balance his accounts. Still, when asked, he said he did not need to write it down. "It is all up 'in the cloud' now." He needs a walker, but often forgets to use it. He has fallen twice in the last couple of months, but does not remember how long ago or that he went to the hospital, saying later, "oh, yes, but that was just the ER." He used to wear button down shirts but now only pull overs - saying that he wore a shirt and tie for too many years while he worked. But, he did mis-buttoned his shirt the one night when they went out for dinner. He cannot figure out how to turn off his phone and sometimes confuses the handset from his land-line for the remote control for the television. Specifically, the daughter met a young man who has been helping dad around the house and who says he can get insurance to pay for his help if dad will sign an "insurance" form. Dad's eyesight isn't so good, but the young man has been so helpful and he would like him to get paid from Medicare, so he signs. But, the young man won't give a copy to her father or the daughter. The daughter is concerned about that happening again, with an unscrupulous person and, perhaps, this young man. So, our first study of history is the father's own immediate past. Over the last 10 years, what has changed. For the answers to this, we need to consult with the daughter. Maybe he was always like this. Once we know that, no, this is different, the daughter decides that, because Dad has a financial Power of Attorney and a Designation of Health Care decision-maker, there is no need for a Guardian. She just needs to make sure that Father cannot do himself any financial harm, unless he understands truly what he is doing. Now, we start our next historical search. What are the standards which our elected officials over the past years (the legislature) have established for the Judges to observe. After a review of the prior Legislatures' directions on how to proceed and who may do so, we perform quick up-date to see if that statutory law has undergone any changes and, if not, the real history search begins. We need to look at the decisions prior courts have made about any special question. Does the fact that dad had not been diagnosed wth dementia prior to him signing the nice young man's "insurance authority" matter? Especially now that we have discovered it was actually a Deed to his house? We find the cases which were argued and won by people in the daughter's position. Then we find the similarities and, equally important, the differences. If our history lesson provides us with old cases, which have been approved time after time before us clearly reflecting the daughter's position, we can bring those cases to our judge's attention to be successful in our attempt to keep her father from signing away his house again, after being exploited by his illness and the young man's greed. This is but one, tiny example of how our history is part of everything we, as attorneys do, day in and day out. It emphasizes that we are history ourselves. Some day in the not-too-distant future, attorneys (or their Al assistants) will cite our very work either as an example of how things should be done or, heaven forbid!, how they should not be done.

Homestead Equity Uses for the Elderly

By Portia B. Scott, J.D., L.L.M. • September 22, 2025
For many families, the home is the single asset with the most value. I understand that financial planners do not like to include the equity in the home when making determinations of wealth, but sometimes it is worth considering. Three questions and accompanying scenarios especially come to mind for the Elder Law practitioner. First, how can a client use the equity in the home to fulfill the client's desire to age in place? Second, does the client need to spend all of the home's value before Medicaid will help when moving into long term care? Third, what, if anything, can be left by the client for the children once the client is gone? In Florida, the answers are as follow. If the client has significant equity in the client's home, a Home Equity Line of Credit ("HELOC") or a Reverse Mortgage are options to be considered. The differences between the two are that a HELOC tends to be less expensive way of accessing the equity in the home, at least initially, but does require monthly repayments to be made on the loan. So, the borrower witl need to include some repayment in the monthly household budget. The borrower has greater options about where the borrower lives. For instance, if the borrower chooses to go live in an assisted living facility, as long as the HELOC is being repaid, there is no issue. This means, among other things, the borrower could rent the property out and use the net proceeds to pay the HELOC. (There are other issues this would bring up including those regarding homestead, however.) A Reverse Mortgage, on the other hand, tends to be more expensive (typically higher interest rates and, often, origination expenses) but does not have to be paid back until the borrower dies or otherwise stops living in the home. This means that if the borrower wants to live at home, the borrower can use the equity to pay for household expenses, taxes, home health aides or companions, lawn care and any other duties the borrower can not, or maybe just does not want to, perform. Does the dient need to spend all of the home's value before Medicaid will help with long term care? Not in Florida, no. In 2025 if a single persons owns a home with less than $730,000.00 in equity and that person need Medicaid to help with long term care bills (nursing home), as long as the patient otherwise meets Medicaid requirements, the patient may keep their home. When the person passes away, the family can inherit the home without worrying about that particular asset being subject to Medicaid State Estate Recovery ("claw back"). With the right plan in place, the last, possibly most valuable asset of the nursing home patient, the client can create the legacy for the children after the patient is gone. More than $730,000.00 in equity? Maybe the client can borrow against the house and use the funds (not gifting the funds) thereby lowering the actual equity down to below $730,000.00? Buying a more expensive car, putting on that new roof the insurance company is going to require soon anyway, upgrading to impact windows, remodeling the kitchen with all new appliances and flooring throughout, taking a trip to see loved ones, paying estimated future income taxes: all of these are ways to spend that "excess" equity. For a married couple when one of them is in a nursing home and the other is not and remains in the community, this community spouse does not have to spend down any of the equity of the house the couple owns.  Finally, if a homestead is left to someone who is descended from the homeowner's grandparent (l know, it is a long way to say blood relative), the home can be left to such a person without having to pay Medicaid any of the asset the homestead represents. Further, because of the "stepped up" basis in the house, leaving a home can truly create a way of ensuring an inheritance which many people consider very valuable indeed.