Buyers often assume their real estate agent is fully on their side. Most of the time, that’s true. But agents — like any professional — can put their own interests, or a quick commission, ahead of yours. When that happens, California law gives you a way to hold them accountable.
Your agent owes you a fiduciary duty
If you worked with a buyer’s agent, that agent owed you a fiduciary duty — the highest duty of care recognized under California law. That means your agent was required to act in your best interest, disclose material facts they knew or should have known, and avoid conflicts of interest. This isn’t just a professional courtesy; it’s a legal obligation.
Selling agents and listing brokers owe disclosure duties too, even though their fiduciary duty runs to the seller. Under Lingsch v. Savage (1963) 213 Cal.App.2d 729, a real estate agent — whether representing the buyer or seller — has an independent duty to disclose known material facts about a property’s condition that affect its value or desirability.
That inspection duty has real teeth. In Easton v. Strassburger (1984) 152 Cal.App.3d 90, the court held that a seller’s broker has an affirmative duty to conduct a reasonably competent and diligent visual inspection of the property and disclose to buyers any material facts that inspection would reveal — not just facts the agent happened to already know. California’s Legislature later codified this duty at Civil Code section 2079, which is why the Agent Visual Inspection Disclosure (AVID) exists today.
Section 2079 also drew clearer boundaries around that duty rather than leaving it open-ended: it applies to a visual inspection, not a more invasive investigation like testing or dismantling, and it’s limited to residential property of one to four units — it does not extend to commercial property, vacant land, larger multi-unit buildings, or the commercial portion of a mixed-use property. Whether your situation falls inside or outside that scope can matter a great deal to how a claim against your agent is framed.
Common ways agents breach their duty
- Pushing you toward a house that wasn’t right for you, to close a deal quickly and earn a commission
- Failing to flag a known red flag — an unpermitted addition, prior water damage, a pending dispute — that a reasonably competent agent should have caught or investigated
- Dual agency conflicts — representing both the buyer and seller (or two competing buyers) without your fully informed, meaningful consent
- Giving you bad or incomplete advice on contingencies, inspection findings, or the purchase agreement
- Failing to complete a proper Agent Visual Inspection Disclosure (AVID) — if the agent walked the property and missed (or ignored) something an inspection should have caught
What you can recover
If your agent breached their fiduciary duty, you may be able to recover damages flowing from that breach — for example, losses tied to a defect the agent should have flagged. You may also be entitled to commission disgorgement, meaning the agent has to give back some or all of the commission they earned, as an independent remedy separate from proving out-of-pocket damages. If the breach involved fraud, oppression, or malice, punitive damages under Civil Code section 3294 may also be available.
Something many buyers don’t realize: a claim against your own agent is measured under a different statute than a claim against the seller. Fraud in the sale of property is normally governed by Civil Code section 3343’s restrictive “out-of-pocket” rule. But in Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, the California Supreme Court held that fraud by a fiduciary is measured under Civil Code sections 3333 and 1709 instead. To be precise about what that does and doesn’t mean: for a fiduciary’s negligent misrepresentation, recovery is still limited to actual out-of-pocket loss; for intentional fraud by a fiduciary, the Court expressly declined to decide whether a broader benefit-of-the-bargain measure applies, saying only that damages “might be greater.” It is not an automatic bigger number — but it is a different framework, and whether your agent was careless or deliberate can meaningfully change the analysis.
Your agent’s brokerage is also typically on the hook for the agent’s conduct within the scope of the agency relationship, and brokerages carry errors-and-omissions coverage. Practically speaking, that often matters more to whether a judgment actually gets paid than the individual agent’s own assets do.
Selling agent vs. buyer’s agent claims
These are different theories with different evidence:
- Against the selling agent/brokerage, claims often center on knowledge the agent had (or should have had) about the property and failed to disclose — sometimes independent of what the seller disclosed.
- Against your own buyer’s agent, claims center on the fiduciary relationship itself — did they investigate red flags, give you sound advice, and put your interests first?
Both types of claims can exist in the same transaction, and identifying which applies (or both) matters for how the case is built.
How Jimmy can help
Jimmy Nguyen is a licensed real estate broker in both California and Nevada as well as a real estate attorney — he’s seen these situations from inside the industry, not just from the courtroom. If you believe your agent didn’t have your back, it’s worth a conversation.
Agent and broker misconduct claims are a core part of Jimmy’s California real estate law practice. Where the agent’s failure cost you a deposit, see earnest money deposit disputes; the real estate law FAQ covers the rest.
The fastest way to get a useful answer is to write out what happened — a few sentences is plenty. Email jimmy@lawjn.com or use the form below for a free case evaluation.