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Something New For Sellers: Liability Insurance Coverage

October home sales were greater in the Puget Sound area than anybody anticipated, but most real estate agents will tell you it's still a buyer's market.

And that's the curious part. Rarely do we have low interest rates, a variety of inventory and desirability in one market at the same time. Typically, when rates are low, there's no inventory. When a lot of homes are available for sale, interest rates are usually too high for people to afford to buy. And, the Northwest remains one of a few areas in the country people will move to - with or without a job.

In an effort to get a few more homes on the market, some brokers and agents are offering sellers liability insurance coverage that protects them from unintentional errors and omissions. The coverage goes from the time the listing agreement is signed until six months after the deal closes.

"A majority of the lawsuits filed after closing are for situations that happened during the listing period," said Tom Greene, director of Homeowners Marketing Services, the Bend, Ore., company providing this insurance. "Real estate agents have had errors and omissions insurance for many years, but there hasn't been the same coverage available for sellers."

The idea is not a bad one for potential sellers because it doesn't cost them a dime. The insurance premiums are paid by the listing brokerage, and the coverage is offered as an incentive to list with the brokerage offering that coverage. (Listing agents pay about $10 per listing for their own protection.)

Homeowners Marketing Services has contracted with 50 brokers in the state to offer the insurance.

"When an agent is named in a lawsuit by the buyer, the seller is usually also sued," said Jack Cuningham, broker at the RE/MAX Sno-King office in Mountlake Terrace. "If the seller has to go through litigation, it can cost . . . at least $10,000."

Greene, who started offering the coverage this year, said 84 percent of all real estate lawsuits brought by buyers include the seller. The insurance coverage is for $25,000 with a hefty $5,000 deductible paid by the seller. For example, if the seller is hit by $22,000 in legal fees, the policy would pay $17,000.

"We are really offering this as a test so we don't really know what the claims will be," Greene said.

Because the coverage is so new and has no track record, it is written on a "surplus-line basis," a category given to an untried, specific niche of insurance coverage. Surplus-line products do not need to be filed with the Washington State Insurance Commissioner.

"There's not necessarily anything wrong with surplus line insurance," said Terry Nordahl, a forms and rate analyst in the Washington State Insurance Commissioner's office. "They are not filed because they are for a situation outside the normal market. But it is not entirely free of regulations."

Seattle attorney John Wagner, who operates John Wagner Escrow in Northgate, said, "I just don't know how a court would interpret an unintentional error or omission." If a jury decides that the seller knew or should have known, would that be covered? Under which category?

"We had a case where a seller had a leak in the roof," Wagner said. "He hired a contractor to fix it. The home sold and the new buyer discovered water coming out from behind a wall. The contractor had `fixed' the leak by placing a coffee can in there to catch the water. The seller didn't know what the contractor did, but the jury felt the seller should have known. Now, would that be covered under this new policy?" Wagner doesn't know the answer.

Alan Tonnon, a Bellevue attorney and former member of the Washington Real Estate Commission, said sellers are best protected by disclosing everything they can about the property. "Disclose, disclose, even if you think you have liability coverage."

Tom Kelly is a private real-estate consultant. His column runs Sundays in the Home/Real Estate section. Send questions and comment to: Tom Kelly, P.O. Box 70, Seattle, WA 98111