Code Violation or Just Unprofessional?

The NAR Code of Ethics sets certain expectations for the behavior of Realtor® members, but it does not set rules for every interaction. There are certain behaviors that are not the height of professionalism but probably don’t rise to the level of a code violation. Let’s talk about a couple of examples of where that line might be drawn. 

But first, a disclaimer: The situations I’ll describe in this article live within the words on this page. Any real-life scenario would involve many other facts and circumstances that would be different from these examples, which could cause an ethics hearing panel to reach a different conclusion. 

I don’t think the other broker is presenting my client’s offer (or counteroffer). 

We’ve heard from an increasing number of callers who do not believe that their client’s offer or counteroffer was actually presented to the other party. The reasons for their suspicions vary, but whatever the cause, they feel their client’s offer was not presented for consideration. 

The Code of Ethics may address this behavior under Article 1, Standards of Practice 1-7 and 1-8. To sum them up, these Standards of Practice say that Realtor® A (working for one party) can request in writing that Realtor® B (working for the other party) affirm the presentation of their offer or counteroffer, and if that occurs, Realtor® B must respond in writing to either affirm that it was presented or explain that the client has affirmatively waived the requirement to present the offer (e.g., the listing broker might say that an offer was not presented because the seller had already accepted another offer and waived the further presentation of offers). 

PAR has a form for that: the Broker’s Request for Affirmation (PAR Form BRFA). This form was created to allow Realtor® members to easily comply with Standards of Practice 1-7 and 1-8 by providing the written request for affirmation of either an initial offer or a counteroffer, along with space for the other licensee to respond.  

A few hints and tips about using the form: 

• Some agents use the form as a regular part of their business and just send it with every offer and counteroffer, but that’s not required. Agents can use it transaction-by-transaction, and you can even use Form BRFA sometime after the initial offer submission if that’s when a concern arises. 
• There is no specific deadline for the written affirmation or notification to be provided, but the code requires it to be done as soon as is practical. 
• This form could actually feed into several different types of ethics violations. If an offer/counteroffer is not presented as required, that’s a potential violation. If the agent returns the form but lies about presenting the offer, that’s another potential violation. And simply not returning the form (or something similar) at all is its own potential violation, since the rules say that the Realtor® “shall provide” a written affirmation. 

They just aren’t returning my calls/texts/emails. 

This comes up as an issue between a consumer and their agent, or between agents who are on either side of a transaction. While clear communication is obviously essential to a transaction, it’s generally not going to be an ethics violation to simply not return a message in a timely manner. It can be rude or unprofessional to ignore a message from a co-worker or potential client, but creating an ethical standard to require responses in a certain way in all circumstances would be impossible to meet. Instead, NAR has created the “Pathways to Professionalism” as a non-binding set of “courtesy and etiquette” factors for Realtors® to keep in mind, though they cannot be used as the basis for an ethics complaint. 

But again, the specific facts matter. Article 3 requires Realtors® to cooperate with other brokers when that cooperation is in their clients’ best interest. If the lack of a response is proven to be a deliberate effort to shut out cooperating brokers without the knowledge of the client, that might rise to the level of a potential violation. Similarly, if the failure to communicate results in something like mishandling of important documents or missing opportunities that might benefit a client, those actions may rise to the level of a potential code violation. 

PAR recently published an article recommending that members sit down and read certain forms to refresh their recollection on exactly what they say, and I’ll close with the same recommendation regarding the Code of Ethics. It can be a good exercise to actually read through the Articles and Standards of Practice as a refresher on just what is and isn’t covered by the Code of Ethics. Just like the forms, the code, Standards of Practice and case interpretations are updated on a frequent basis, so regularly reviewing them can keep you knowledgeable as you carry out your business.