Heliotis

Although in many instances where an attorney represents a seller of real estate the services performed and the fee governed are indistinguishable from what a licensed broker does and gets, I agree with the lead opinion’s conclusion that a comparable duty of disclosure does not exist. I write separately to explain that I place my conclusion on the ground that this is an area solely for the Legislature. Nor has the Legislature been reticent. Any lawyers who believe that today’s decision creates a new field of employment representing sellers who have something to hide should read with care Civil Code sections 1102-1102.13 which become operative January 1, 1987. That also leaves plenty of time for them and their clients to review the law of agency.

In all other respects I join in the reasoning and result of the lead opinion.

Appellant’s petition for review by the Supreme Court was denied August 13, 1986.

Appellant George Heliotis purchased a home from respondents Harry and Bessie Schuman; the Schumans’ attorney, Leonard Berger, assisted. When Heliotis discovered soil damage on the site after the close of escrow, he filed a complaint for rescission, fraud, and intentional infliction of emotional distress against the Schumans and Berger. The trial court dismissed Berger from the action on his motion for summary judgment; the jury rendered a verdict on the merits for the Schumans. Heliotis appeals both judgments, contending that (1) he is entitled to a new trial against the Schumans on the basis of constructive fraud (Civ. Code, § 1573); 1 (2) the trial court erred by using a BAJI special verdict form; and (3) Attorney Berger owed him the same duty to disclose material facts that a real estate broker would owe him. We reject these contentions and affirm the judgments.

*648 I. Facts

Appellant George Heliotis regularly purchased residential property to repair and resell it. He had already purchased several properties for this purpose by late 1980. It was his practice to do his own inspections; he usually purchased these properties through a realtor.

In November 1980,…

[Opinion certified for partial publication. [*] ]

OPINION

CHANNELL, J.

Appellant George Heliotis purchased a home from respondents Harry and Bessie Schuman; the Schumans' attorney, Leonard Berger, assisted. When Heliotis discovered soil damage on the site after the close of escrow, he filed a complaint for rescission, fraud, and intentional infliction of emotional distress against the Schumans and Berger. The trial court dismissed Berger from the action on his motion for summary judgment; the jury rendered a verdict on the merits for the Schumans. Heliotis appeals both judgments, contending that (1) he is entitled to a new trial against the Schumans on the basis of constructive fraud (Civ. Code, § 1573); [1] (2) the trial court erred by using a BAJI special verdict form; and (3) Attorney Berger owed him the same duty to disclose material facts that a real estate broker would owe him. We reject these contentions and affirm the judgments.

Appellant George Heliotis regularly purchased residential property to repair and resell it. He had already purchased several properties for this purpose by late 1980. It was his practice to do his own inspections; he usually purchased these…