In Illinois, a buyer's agent represents the buyer

Readers: In a recent column, I answered a question from a Washington, D.C., real estate attorney. A number of real estate agents and attorneys have written to express displeasure over my response to her. Therefore, I offer this explanation and apology.

The question was as follows: "Some of your articles suggest that a buyers' agent has a responsibility to represent the interests of buyers. As a real estate attorney, I strongly disagree. The buyers' agent is actually a subagent to the sellers' agent because both agents are paid from the sellers' commission. Therefore both agents are actually working for the sellers. Unfortunately, most buyers are entirely unaware of this legal distinction. Buyers assume their agent is actually representing them. You should bring these facts to the attention of your readers."

My response was to agree with her legal opinion but to point out that agents have a responsibility to buyers on the basis of ethics, regardless of the law. I should have clarified, however, that her legal opinion may be valid where she practices law but not in most states. I apologize, therefore, for any misunderstandings that may have arisen from that column. Buyers' agents in most of America are not obligated to represent sellers.

Editor's note: According to Gary Clayton, CEO of the Illinois Association of Realtors, an agent in a brokerage office who is assigned to assist a particular client in Illinois fully represents that client's best interests and owes fiduciary-like duties to that client. Under state law, compensation does not determine whether an agency or agent must represent the buyer or seller.

Q. When we bought our home, many defects were missed by our home inspector, and not one was included in the seller's disclosure statement. The worst of these were plumbing leaks in the bathrooms and mold under two of the sinks. The home inspector and seller haven't returned our calls, so we hired another home inspector. He found many additional problems that were never disclosed to us. Our friends have advised us to take the seller and home inspector to small claims court, but we've never done this before. What is your advice about suing in small claims court?

A. This column is not a venue for legal advice, and I don't want to be apologizing next week for something I may say here. So to begin, you should discuss this situation with an attorney who can advise you regarding the most effective ways to present your case, should you decide to go to small claims court. Having said that, here is some layman's advice on presenting a small claims case to maximize your chances of winning a judgment:

• Keep in mind that most small claims judges are fair-minded, patient people who are not as intimidating as Judge Judy. They want to hear and understand your complaint and to render a fair and equitable judgment. Therefore, you should present your case in a clear and organized fashion, covering all essential points in as few words as possible.

• Prepare your presentation in advance, outlining all of your main issues in chronological order, just as you would an oral report for an English class if you wanted to get an "A."

• Have copies of all pertinent documents ready for the judge. These should include the seller's disclosure statement, the home inspection report, a log of all communications, and receipts or bids for all repair work. As you tell your side of the story, present these documents to the judge as evidence of each point.

• Have the second home inspector appear as a witness. If you win, the judge will probably add the expert witness fee to the judgment.

• Try to anticipate the arguments that will be made by the defendants, and consider in advance what you will say in response.

There is a nominal filing fee for small claims court, as well as a charge for serving the summons. Fortunately, there are no attorney fees for the trial because attorneys cannot participate. You only have to appear in court one time, and the judge makes a decision on the spot or has the decision mailed to you. Once you have a judgment, there are several ways to collect, most of which can be enforced by the county sheriff. These include, but are not limited to, garnishing wages, collecting against a bank account, attaching personal property, and recording the judgment so that it affects future credit. Your attorney can advise you in this regard.

• To write to Barry Stone, visit him on the web at www.housedetective.com, or write AMG, 1776 Jami Lee Court, Suite 218, San Luis Obispo, CA 94301.

© 2014, Action Coast Publishing