If you are a realtor giving your client an opinion as to the value that his or her property will sell for or the time that it will be on the market, be careful. You may be at risk for consumer fraud (click here for an overview of consumer fraud law).
In Duhl v. Nash Realty Inc., 102 Ill.App.3d 483, 429 N.E.2d 1267 (1st Dist.1981), the 1st District Appellate Court upheld a cause of action for consumer fraud where a realtor told a prospective client that their existing home would sell “very quickly” for between $162,000.00 and $163,000.00, when in fact the home did not sell quickly and was overvalued by the realtor by $20,000.00. The realtor was hired for both the sale and the purchase of a new home. Because the existing home did not sell as quickly as the realtor represented, the Plaintiffs were unable to afford to stay in the new home and were forced to sell it at a less than ideal price.
The court stated as follows: “[I]t has been recognized very often that the expression of an opinion may carry with it an implied assertion, not only that the speaker knows no facts which would preclude such an opinion, but that he does know facts which justify it. There is quite general agreement that such an assertion is to be implied where the defendant holds himself out or is understood as having special knowledge of the matter which is not available to the plaintiff, so that his opinion becomes in effect an assertion summarizing his knowledge. Thus the ordinary man is free to deal in reliance upon the opinion of an experienced jeweler as to the value of a diamond, of an attorney upon a point of law, of a physician upon a matter of health, of a banker upon the validity of a signature, or the owner of land at a distance as to its worth, even though the opinion is that of his antagonist in a bargaining transaction. On the same basis it has been held that statements by a seller as to the capacity of the thing sold, or the condition of land, or other matters, which on the part of one without special knowledge would be regarded as mere opinion, may be relied on as statements of fact."
So, what can we take from this case? If you are an experienced on your industry, be careful about the opinions you give to prospective clients. Even opinions of what you expect to happen in the future may be treated as statements of fact for the purposes of consumer fraud. One way to protect yourself when giving such opinions, is to give the opinions with the caveat that it is merely an opinion and may be borne out to be ultimately incorrect.
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