LAW OF THE LAND: Breach of fiduciary duty — elements of a claim

martin

William Martin

Published: Friday, August 9, 2013 at 10:47 AM.

As an attorney, I have a fiduciary duty to my clients. But what exactly is a “fiduciary duty.” Not surprisingly, like many areas of the law, the term “fiduciary” is sometimes a bit squishy. But, there is one area that is clear — a lawyer, or any other fiduciary, must avoid “self-dealing” or “conflicts of interest” where the potential benefit to the fiduciary is in conflict with what is best for the client — in other words, abusing the relationship.

Fiduciaries can include business advisors, attorneys, guardians, estate executors, bankers, real estate agents, title companies, stock brokers, husbands, wives, or anyone who accepts your complete confidence and trust. A fiduciary duty can be either express or implied from the “specific factual situation surrounding the transaction and the relationship of the parties.”

"An implied fiduciary relationship will lie when there is a degree of dependency on one side and an undertaking on the other side to protect and/or benefit the dependent party." The relation and correlative duties need not be legal but may be moral, social, domestic or merely personal."

What if you think a fiduciary has breached his or her duties to you? If you took it to court, you would have to prove: (1) the existence of a duty, (2) breach of that duty, and (3) damages flowing from the breach. Often, the existence of the duty is the crucial element. I performed a brief survey of Florida caselaw and came up with two situations where a judge or jury found the existence of a fiduciary relationship related to real estate transactions:

A real estate agent held himself out as a real estate agent experienced in luxury riverfront properties and brought his friend investment proposals that he represented were excellent investment opportunities. The agent told her he would take care of her, that she would "never lose a dime," and that she could trust him.

A corporation’s president arranged for a secret profit as part of a real estate transaction at the expense of and without the knowledge of the corporation.

Conversely, a real estate agent was able to convince a judge that a fiduciary duty did not exist because a contractual disclaimer advised the buyer of a business that “the Purchaser retains sole responsibility for all decisions or action required for” making the decision.



1 2
Next

Reader comments posted to this article may be published in our print edition. All rights reserved. This copyrighted material may not be re-published without permission. Links are encouraged.

COMMENTS
▲ Return to Top
 

Local Faves


RodeoRap 2014

  • Openings
     If you are on a 25-foot and under boat and have fish – stop by the scales. There are plenty of openings on the daily board. Right now the only thing brought in by an under-25 boat is a 11.4-pound … Continue reading
  • Special catches
     The Special K has made it to the Rodeo scales today with a couple of fish good for dailies. Adam Bates pulled in a 13-pound king mackerel and Bill Widman reeled in a 22.4-pound blackfin tuna. Still plenty of time … Continue reading
  • Girls get it done
     Ashlee Beard just weighed in a 25.4-pound wahoo for a first on the big board. She was on an all-girl trip on the No Alibi. -Tina Harbuck  
  • First white
     Rick Deerman of Alabama just weighed in a 69.4-pound white Marlin caught on the Gulf Breeze. It was the first billfish for Deerman – captain and crew. All got tossed in the water for the catch. -Tina Harbuck  
  • King of the day
     Brittany Audley shows off a 26.8-pound king mackerel she caught on the Huntress. She is leading on the daily board.