ORLANDO, Fla. – Dear Anne: My listing agreement with a seller is for six months, but this seller and I had a falling out three months into the listing. Advertising this property did not come cheap, and the cancellation fee would enable me to recoup my expenses, but the seller was unreasonable and refused to pay the cancellation fee.
In most cases, I would cut the seller loose, but this seller was as obstinate as they come. I changed the listing status to “withdrawn” per the seller’s instruction.
Two weeks later I received a call from an eager beaver agent who said he would report me to the MLS if I did not remove my listing because he needed to put in his listing for the same property. I refused and even told him how to use the compliance button on the MLS.
Obviously, this agent violated the Code of Ethics when he talked to my seller. I believe I have a rock-solid case to nail this guy. What do you think? Signed – Slam Dunk
Dear Slam Dunk – I’m not so sure we have the whole story, so I’m going to go the “what if” route.
First off, it’s risky business for an agent to troll “withdrawn” or “temporarily off the market” listings. Why? Because the listings in these categories are more than likely still subject to a valid listing agreement. The question keeps popping up on the Legal Hotline, and the answer is always the same: Don’t go there.
Here comes the “what if” part: What if the seller approach Eager Beaver instead of the other way around? The seller could insist the second listing agent take his listing even though the seller is still listed with you.
Two Standards of Practice come into play here. Standard of Practice 16-9, “Realtors®, prior to entering into a representation agreement, have an affirmative obligation to make reasonable efforts to determine whether the prospect is subject to a current, valid exclusive agreement to provide the same type of real estate service.”
If a seller contacts you, this should be the first thing out of your mouth. And if this seller insists on the agent taking the listing, Standard of Practice 16-14, should be the second. That one says Realtors shall not knowingly obligate the seller to pay more than one commission except with their informed consent.
Document, document, document. This may come in handy if you receive an invitation from your local board to appear at an ethics hearing as “The Respondent.”
Parties to any ethics or arbitration proceeding should leave their “over confidence” at home. It’s not healthy! And for those who read my column, this subject has come up before, and I suspect this won’t be the last time.
And no, Mr. Slam Dunk, you do not have to remove your listing because Eager Beaver wants a shot at putting the listing in the MLS. Some MLSs allow more than one listing on the same property to be entered while others do not. If you’re in the latter, it’s first come first serve, folks.
Have an ethics or rules question? Email us at firstname.lastname@example.org with “Dear Anne” in the subject line.
Anne Cockayne is Director of Local Association Services for Florida Realtors
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