My Buyer does not speak or read English but I am fluent in her native language. She has adult children who live in the area who can also translate for the Buyer. Is it okay for me to do the translations? What is the best way to handle the translations and minimize my risk?
There is nothing illegal about the real estate professional serving as a translator. However, no matter how proficient the foreign language skills of any Sales Associate may be, the real estate licensee should avoid serving as the person who translates contracts, disclosures, advisories, reports and/or escrow instructions for any of the Parties.
It is always important that real estate professionals converse with clients in the language that the clients prefer; this enables the real estate professional to bond with the client over their cultural similarities. That is often an important requirement to facilitate the transaction but translating technical and legal documents is simply a different process.
When dealing with clients who can read English, it is usually sufficient to provide the client with guidance as to the contents of the documents that they are receiving but, because they have the ability to read the documents, they can, to the extent they feel necessary to do so, confirm for themselves what the documents actually say. People who cannot read English do not have that same opportunity.
Too many people have used their alleged limited English skills as an excuse for not knowing what they have signed even when the Sales Associate is not serving as the translator; those claims are worse if they claim that the Sales Associate gave them an erroneous translation.
In one lawsuit where the Sales Associate was accused of inaccurately translating the documents, the E&O carrier denied coverage because providing translation services is not part of the covered licensee activities. The availability of insurance coverage is an important consideration when discussing this topic.
Parties who are not sufficiently proficient in reading or understanding English should be strongly encouraged to retain the services of a certified translator. The best practice is to have the translator sign each document that they have translated to the Party so as to prove which documents the Party understood. When a professional translator is being used, include the following language in the Purchase Contract:
[Insert name of Party] cannot read or understand English proficiently. Therefore, [insert name of translator], a certified translator, has read or will read all contract documents, disclosures, advisories, reports and escrow instructions to [name of Party] prior to [name of Party] signing these documents. By signing his/her name to these documents, [name of Party] acknowledges that he/she understands and accepts these documents such that all of the other Parties to this transaction can rely on his/her signature. This has been confirmed by [name of translator] who has also signed or will sign all of these documents when [name of Party] has signed each document.
Alternatively, the Party may choose to use a close friend or family member who is proficient in English in their language if the Party does not want to hire a certified translator. It is important, however, to make sure that the friend or family member is an adult [defined as being old enough to vote]. If that is the person providing the translation, then include the following language in the Purchase Agreement:
[Insert name of Party] cannot read or understand English proficiently. Therefore, [insert name of translator] a translator selected by [name of Party], has read or will read all contracts, disclosures, advisories, reports and escrow instructions to [name of Party] before he/she signs these documents. By signing his/her name to these documents, [name of Party] acknowledges that he/she understands and accepts these documents such that all other Parties to this transaction can rely on his/her signature. This has been confirmed by [name of translator] who has also signed or will sign all of these documents when [name of Party] has signed each document.
PRACTICE TIPS:
1. The ability to converse in a foreign language is not the same skill as translating technical and/or legal jargon. Simply because an individual can speak the same language as the client does not mean that they can or should serve as the translator of transaction documents.
- Certified translators can be found on the internet; another way is to contact a local Court Reporter service and find out who they use since the Court Reporters are not authorized to do the translations while they are taking down testimony. There is a fee to retain a certified translator but it is worth the expense.
- If a certified translator or someone else is chosen by the client to translate the transaction documents, use the appropriate language above in the Purchase Agreement.
- Brokers make business decisions every day by weighing the benefits against their risks. Before deciding whether or not to take the risk of a real estate licensee serving as a translator, check with your E&O carrier as to whether or not there is coverage for that activity. If there is no coverage, the risk analysis becomes quite easy.
This Weekly Practice Tip is an attorney-client privileged document for the exclusive use of clients of Broker Risk Management and their agents. It may not be reproduced or distributed without the express written consent of Broker Risk Management. The advice and recommendations contained herein are not necessarily indicative of standards of care in the industry, but rather are intended to suggest good risk management practices.
© Copyright Broker Risk Management 2018 9/07/18