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Dear Anne: COVID-19, Ethics and Lapses in Judgement

While the COVID-19 pandemic has upended Americans’ day-to-day life, it hasn’t changed the Realtor Code of Ethics – and local associations will continue to process and enforce the Code, either by virtual means or by waiting until this pandemic has passed.

ORLANDO, Fla. – Dear Anne: I’m already seeing so-called “real estate professionals” using the COVID-19 pandemic as an excuse to do as they please. It’s like they’re giving the Realtor® Code of Ethics the boot. This should be the time when we should work together for the good of our communities and our profession. Has the pandemic sidelined the Code of Ethics? Signed, It’s Bad Enough
 
Dear It’s Bad Enough: The Code of Ethics isn’t going anywhere, folks. Realtor members are still obligated to abide by the Code of Ethics regardless of our current circumstances. And local associations will continue to process and enforce the Code, either by virtual means or by waiting until this pandemic has passed.

The following is an excellent article written by Hank Lerner, Esq, from the Pennsylvania Association of Realtors, entitled “Ethics in the Time of COVID-19.” While some of the references to “governor’s orders” refer directly to Pennsylvania rules rather than Florida, it’s a good read and worth your time. Thanks, Hank! – Anne

Ethics in the Time of COVID-19
By Hank Lerner, Esq., courtesy of the Pennsylvania Association of Realtors

Article 1: Realtors “protect and promote the interests of their client” and are “obligated to treat all parties honestly.”

Have you discussed with clients whether it’s truly in their best interests to move ahead with a transaction in the current market?

  • Have you counseled your clients on the hurdles they’re likely to face, and are you able to help them (legally and ethically) navigate them?
  • Are you treating the parties honestly if you promote or offer services which are prohibited by the governor’s orders?
  • Article 3, Standard of Practice 3-8: (“Realtors shall not misrepresent the availability of access to show or inspect a listed property”)

Article 3, Standard of Practice 3-9: (“Realtors shall not provide access to listed property on terms other than those established by the owner of the listing broker.”)

  • Are you offering property access in a way that is prohibited by the governor’s orders?
  • Are you attempting to schedule showings when the seller has said they don’t want them?
  • If it is possible to access a property legally, are you able to adequately ensure that all showing instructions are complied with?

Article 10: “Realtors shall not deny equal professional services to any person” based on their inclusion in one of the protected classes.

  • Are you refusing to work with potential clients based on their ethnicity (e.g., unwilling to work with Chinese or Italian clients)?
  • Are you only cutting back or refusing business in areas that could have a disproportionate impact on certain protected classes?

Article 11: Services provided by Realtors “shall conform to the standards of practice and competence which are reasonably expected in the specific real estate disciplines in which they engage …”

  • Standards for the safe practice of real estate are changing – at least in the current environment, and perhaps permanently. Are you aware of the changes and able to provide those services?
  • The new hurdles faced in different types of real estate practice will be very different. Are you sufficiently well-versed in those specific issues to be able to practice outside of your primary expertise, or is now a good time to refer to experts in those other specialties?

Article 12: “Realtors shall be honest and truthful in their real estate communications and shall present a true picture in their advertising, marketing and other representations.”

  • Is it “honest and truthful” to advertise that you are able to provide certain services when those services are prohibited by the governor’s orders, or may be unsafe/unwise in the current environments?
  • Are you making claims about your business practices that may not be supported by facts (e.g., if something says “our closing process follows all CDC guidelines,” does it?).

Article 13: “Realtors shall not engage in activities that constitute the unauthorized practice of law and shall recommend that legal counsel be obtained when the interest of any party to the transaction requires it.”

OK … I’m going to break my rule here and say that if you’re an agent or broker trying to write your own liability waivers, hold harmless agreements, force majeure provisions, or anything else along those lines JUST STOP IT RIGHT NOW! Ethics or not, if you get sued for something you drafted on the back of a napkin without counsel’s advice, the outcome will not be good for anyone but the plaintiff.

Article 15: “Realtors shall not knowingly or recklessly make false or misleading statements about other real estate professionals, their businesses, or their business practices.”

  • Are you making statements about other Realtors or service providers that are not accurate? For example, stating that another provider is “not open for business” could be misleading if the reason they’re not open is that they’re complying with the governor’s orders.
  • If you post a nasty comment about how other practitioners have chosen to do business it could be a violation if your reaction is deemed to be false or misleading.

Article 16: “Realtors shall not engage in any practice or take any action inconsistent with exclusive representation or exclusive brokerage relationship agreements that other Realtors have with clients.”

  • Are you suggesting that you can provide services in place of a consumer’s existing broker/agent?
  • If you are working with consumers but not signing formal representation agreements, have you considered that other Realtors are not violating the Code if they approach those consumers.

To be clear, nothing in this article is pointing to any specific ad/post/activity– but the questions being posed are based on comments and concerns that we have heard from across the state. If any of these look like things you’re doing, you may want to rethink your approach. If you’re seeing these sorts of things from other Realtors you can consider pursuing an ethics complaint through the usual channels at your local association or PAR if your association participates in the statewide cooperative.

Have an ethics or rules question? Email us at legalnews@floridarealtors.org with “Dear Anne” in the subject line.

Anne Cockayne is Director of Local Association Services for Florida Realtors

© 2020 Florida Realtors®; selected parts copyrighted to the Pennsylvania Association of Realtors®