Why am I in Violation if Everybody Does It?
Dear Shannon: A listing broker allowed a buyer to tour a vacant property they listed for the seller who was out of town. It’s a common practice, everybody does it, and the potential buyer did no harm. Why is this a violation?
ORLANDO, Fla. – Dear Shannon: I’m a listing broker who took a listing from a military seller being transferred out of state. After the seller moved out, I assured them I would find a buyer as soon as possible.
The house was empty, and I followed the practice that’s traditional in my area: I put a “Vacant-owner transferred” sign in the yard and another sign that said “Open.” When potential buyers called, I gave them the address, told them the key was in the lockbox and shared the combination. I suggested they walk through on their own and call me if they needed additional information or want to make an offer.
I don’t usually communicate with my sellers unless I have good news, so I had not spoken to the seller for a few weeks after taking the listing. But one day, the seller just showed up unannounced and was upset when they found out that I don’t personally show the property to every potential buyer. I explained that my system was common practice in these parts, but the seller filed a complaint against me anyway. The seller claimed I failed to protect and promote their interests – that I didn’t make “proper efforts” to find a buyer, and that I left the house vulnerable to vandalism.
First of all, the house was not vandalized. Secondly, my advertising confirms that I took proper efforts to sell it. And my system – leaving keys to vacant listings in lockboxes and telling potential buyers to view the property on their own – is a common local practice. How is this a violation? – Common Practice
Dear Common Practice: Yikes! Really glad you reached out. I’m sure you are not the only one who wrongly thinks that just because something is “common practice,” that it’s okay.
In this case, what you did is not okay. The question: Were you protecting and promoting the seller’s interest by advertising the property, leaving the house open and inviting potential buyers to view it on their own?
Let’s look at sections of the Code of Ethics and Arbitration Manual (Manual) that seem to apply to this situation.
Article 1 is relevant here and states (bold is mine): When representing a buyer, seller, landlord, tenant, or other client as an agent, Realtors® pledge themselves to protect and promote the interests of their client. This obligation to the client is primary, but it does not relieve Realtors® of their obligation to treat all parties honestly. When serving a buyer, seller, landlord, tenant or other party in a non-agency capacity, Realtors® remain obligated to treat all parties honestly. (Amended 1/01)
The seller claims you failed to “protect and promote their interests” by not making proper efforts to find a buyer and leaving the house open to vandalism. Article 1 doesn’t define or spell out all the things you have to do as a Realtor to protect and promote the interests of the seller. You say that advertising alone is evidence of your proper efforts to sell it. Clearly the seller disagrees. At the very least, doing nothing more than advertising the property is likely a failure to act professionally and inconsistent with the duties to protect and promote the seller’s interests.
The seller’s second claim: You failed to protect and promote their interests by leaving the house open to vandalism. Your defense is that this behavior is “common local practice” and, besides, the home wasn’t vandalized.
No language in the Manual relinquishes a Realtor’s duties just because a behavior is “common practice.” Nor does the Manual include a “no harm, no foul” section. Let’s think this through and see if we can find additional insight that might apply to this situation. Remember, Standards of Practice serve to clarify the ethical obligations imposed by various Articles.
Standard of Practice 1-16 states (bold mine again): Realtors® shall not access or use, or permit or enable others to access or use, listed or managed property on terms or conditions other than those authorized by the owner or seller. (Adopted 1/12)
Standard of Practice 1-16 plainly prohibits you from permitting or enabling others to access listed property on terms or conditions other than those authorized by the seller. Here, you gave out lockbox combinations and invited potential buyers to view the property on their own. Since the seller is upset and filed a complaint, then it’s reasonable to infer that this was not authorized by the seller. As a result, a hearing panel is very likely to find you in violation of Article 1 as interpreted by SOP 1-16.
Realtors are duty bound to follow the Code of Ethics. Some may think that just because behavior is commonplace that it must okay. It is not.
Thank you for the opportunity to provide you and others with important education on this matter. Please keep reaching out and know that you have been helpful in educating your fellow Realtors through these shared experiences.
Shannon Allen is an attorney and Florida Realtors Director of Local Association Services
Note: Advice deemed accurate on date of publication. Based on Case Interpretation #1-7. Other laws and rules may apply.
© 2023 Florida Realtors®