Code Violation or Petty Annoyance?
By Desiree Brougher, Esq. | March 19, 2021 | 4 min. read
The Code of Ethics sets certain expectations for behavior of Realtor® members, but it does not set rules for every interaction.
There are many petty annoyances that are not the height of professionalism, but probably don’t rise to the level of a code violation. That being said, it’s time for a disclaimer. The situations I’ll describe in this article live in the vacuum of my imagination, but there are additional circumstances that would probably exist in a real-life scenario. So just because I give an example that may not be a violation of the code doesn’t mean that there couldn’t be a similar situation with slightly different factors that would be interpreted differently.
- I’ve tried reaching out to this agent and he won’t call/text/email me back. This could be the basis of a complaint from a consumer or another Realtor®, and while communication is essential, it’s not a violation to simply not return a message in a timely manner. It can be aggravating, rude and unprofessional to ignore a message from a co-worker or potential client, but the standard to require responses in all circumstances would be impossible to meet. But the specific facts matter. For example, one clear exception would be when failure to respond would be a violation is the failure to respond to a cooperating broker who has, by providing a Broker’s Request for Affirmation form (PAR Form BRFA) for example, asked in writing for affirmation that the client’s offer was submitted to the seller or landlord. And if the lack of a response is a deliberate effort to shut out cooperating brokers altogether, that could possibly be a problem under Article 1 or Article 3.
- The seller doesn’t want to allow this agent/person to have a showing. While Realtors® are expected to cooperate with one another, the cooperation is limited by the rules of access that the seller sets. (Standard of Practice 3-9). A seller may not want to allow her ex-mother-in-law real estate agent to be able to show the property because she does not trust her. A particular buyer agent may be excluded because a prior relationship with the seller ended badly. In these situations, Realtors® often feel conflicted by excluding potential buyers or renters from a showing. However, as long as the limitations are put in place by the client, and are not based on a person’s race, color, religion, sex, handicap, familial status, national origin, sexual orientation or gender identity, then the Realtor® can enforce the restrictions set by the seller.
- The offer of cooperating compensation isn’t an equal split. There is a reason PAR’s employment contracts state that no association of Realtors® has set or recommended a broker’s fee: it would be a breach of antitrust law to do so. And yet there still seems to be a certain number of agents or brokers who somehow believe that the code or MLS rules require that listing brokers offer 50% of their gross commission as cooperating compensation. While a property listed in the MLS must have offer some cooperating compensation to a selling agent, there is not – and cannot be – a rule declaring that offer must be an equal share (Article 3). Questions about the offer of cooperating compensation should be addressed prior to submitting an offer to purchase or lease the property, and the acceptance of an offer of compensation or an agreement to modify that offer can be documented on the Cooperating Broker Compensation Agreement (PAR Form CBC).
A few weeks ago, we published an article recommending that members sit down and read certain forms to refresh one’s 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.
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