ETHICS 101 THE RULES THAT GUIDE US

Transcription

1 ETHICS 101 THE RULES THAT GUIDE US (ELECTIVE COURSE) 3 CREDIT HOURS HOME STUDY PROGRAM 10/04

2 Copyright 2003, 2004 AHI Real Estate & Insurance Services 11/03,10/04 Copyright 2003, 2004 AHI Real Estate & Insurance Services All rights reserved. Printed in the United States of America. No part of this publication may be used or reproduced in any form or by any means, transmitted in any form or by any means, electronic or mechanical, for any purpose, without the express written permission of AHI Real Estate & Insurance Services, Inc. Making copies of this book for any purpose other than your own personal use is a violation of the United States copyright laws. AHI REAL ESTATE INSURANCE SERVICES W GRAND AVE FRANKLIN PARK, IL TOLL FREE: (800) (847) FAX: (847) INTERNET: REALESTATE@AHICE.COM Important Notice AHI Real Estate Services and the instructors cannot be held responsible for any errors in the preparation of the materials, and the presentation. This program is for educational purposes and neither AHI Real Estate & Insurance Services nor the instructors are providing advice legal or otherwise. Every care has been taken to ensure that the information in this course material is as accurate as possible at the time of publication. Please be advised that applicable laws and procedures are subject to change and interpretation. Neither the authors nor the publisher accept any responsibility for any loss, injury, or inconvenience sustained by anyone using this guide. This information is intended to provided general information and background and is distributed on the basis that the authors are not engaged in rendering legal, accounting, or any other professional service or advice. This guide was designed to provide you with an overview of the information presented and is not a substitute for professional i

3 TABLE OF CONTENTS CHAPTER 1: ETHICS AN OVERVIEW 1 I. ETHICS AN OVERVIEW...1 II. PERCEPTION OF ETHICS...1 III. ETHICS FOR THE REAL ESTATE PROFESSIONAL...1 IV. CHARACTERISTICS OF A PROFESSIONAL...1 CHAPTER 2:ETHICS HISTORY & ENFORCEMENT 2 THE CODE OF ETHICS OF THE NATIONAL ASSOCIATION OF REALTORS@...2 ENFORCING THE CODE OF ETHICS...3 IS THE COMPLAINT AGAINST A REALTOR OR A REAL ESTATE AGENT?...3 IS THE VIOLATION AN ETHICS OR ARBITRATION ISSUE?...3 THE POWERS AND AUTHORITY OF THE ASSOCIATION...3 WHO CAN FILE AN ETHICS COMPLAINT...4 HOW IS AN ETHICS COMPLAINT FILED...4 WHO MAY FILE AN ARBITRATION REQUEST...4 AN ARBITRATION REQUEST MUST...4 HOW IS AN ARBITRATION REQUEST FILED...4 THE ROLE OF THE GRIEVANCE COMMITTEE...4 ROLE OF THE PROFESSIONAL STANDARDS COMMITTEE...5 CHAPTER 3: ETHICS AND PROCURING CAUSE 7 YOU BE THE JUDGE...10 CASE STUDY: ONE- CHEEP/ASSIST REALTY AND CARELESS/GUIDE YOU RITE REALTY CASE STUDY TWO: JOHNSON/JONES/RODRIGUEZ...11 CASE STUDY THREE: KELLY/MARKEWICZ/LOPEZ...12 NAR CODE OF ETHICS 13 DUTIES TO CLIENTS AND CUSTOMERS...13 END OF COURSE...20 INCLUDED: TEST YOUR KNOWLEDGE QUIZ AT THE END OF EACH CHAPTER ii

4 CHAPTER 1: ETHICS AN OVERVIEW I. ETHICS AN OVERVIEW An increasing amount of states and professional organizations now require ethics in one form or another to be part of a real estate agent s education process. The purpose of this is twofold. One, licensed professionals are held to a higher level of legal responsibility to the general public and more specifically to their clients. Two, by standardizing ethical practices the professional real estate agent will run into less risk of ethical practice suits by the general public. Ethics is not an issue of knowing what s right. it s a question of doing what s right. Agents must understand the motivation behind their actions to properly counsel and advise their clients. Is the motivation due to the need to earn a commission or is the counseling based on meeting the best needs of the client? II. PERCEPTION OF ETHICS A. Ethics is the discipline that deals with what is good and bad or right and wrong or with moral duty and obligation. B. Ethics can be approached from two levels: 1. The philosophical level-dealing with the possibilities 2. The practical level-dealing with the reality of every day experiences C. Ethics is a person s perceptions or convictions about what is right or wrong. D. Living by the Golden Rule is often the role model for sound religious ethics. E. Society, through laws and accepted behavior patterns, imposes guidelines on how to deal with other people. III. ETHICS FOR THE REAL ESTATE PROFESSIONAL One of the definitions for a real estate agent or broker is one who assists or directs in procuring or referring of prospects, intended to result in the sale, exchange, lease, or rental of real estate. There are five areas of ethical responsibility for a real estate agent.! Responsibilities to their broker to whom they owe duties of good faith, honesty, loyalty, and presenting an image that reflects the integrity of their organization.! Responsibilities to clients (buyers and sellers) to whom is owed accounting, care, confidentiality, disclosure, honesty, obedience, and loyalty.! Responsibilities to the general public include disclosure and honesty.! Responsibilities to other licensees consist of disclosure, honesty, cooperation, and professional conduct.! Responsibilities to the state are to adhere to the laws and regulations mandated by their state IV. CHARACTERISTICS OF A PROFESSIONAL The word profession means an open or public declaration, but has come to mean any calling requiring academic training and specialized knowledge. Real estate agents are considered professionals because their business meets the following six commonly accepted characteristics of a profession: # Commitment to high ethical standards; # Concern for the welfare of others; # Mandatory licensing and training; # Formal participation in an association or society; # Acting with integrity and objectivity; and # Public acknowledgement as a profession. The most widely recognized set of rules governing conduct is the National Association of Realtors@ Code of Ethics established in In its Code of Ethics the family of Realtors@ is offered a farsighted vision of the profession as it could be and should be. Test Your Knowledge TRUE OR FALSE T F 1. Licensed professionals are held to a high level of legal responsibility to the general public and more specifically to their clients. T F 2. By standardizing ethical practices the professional real estate agent will run into less risk of an ethical practice suit. 1

5 T F 3. Ethics is not an issue of knowing what s right, but a question of doing what s right. T F 4. It s not important for agents to know the motivations behind their actions to know whether they are properly counseling their clients. T F 5. Ethics is the discipline that deals with what is right or wrong. T F 6. Ethics for a real estate professional is measured by their sales volume. T F 7. Ethics can be approached from the philosophical level, which deals with possibilities. T F 8. Ethics can be approached from a practical level, which deals with the reality of every day experiences. T F 9. Ethics is first experienced as a person s perception of what is right or wrong. T F 10. Laws and accepted behavior patterns impose guidelines on how to deal with other people resulting in a standard of accepted ethical behavior. T F 11. Agents have ethical responsibilities to their brokers, clients, and other licensees, but not to the general public. T F 12. Ethical responsibilities to a broker include presenting an image that reflects the integrity of their organization. T F 13. An agent owes a broker the duties of good faith, honesty and loyalty. T F 14. Clients are owed accounting, care, confidentiality, disclosure, honesty, obedience, and loyalty. T F 15. Ethical responsibilities to the general public include disclosure and honesty. T F 16. Ethical responsibilities to other licensees include disclosure, honesty, cooperation, and professional conduct. T F 17. Responsibilities to the state require adhering to the laws and regulations. T F 18. A professional is characterized by the money they make. T F 19. Commonly accepted characteristics of a professional are commitment to high ethical standards, concern for the welfare of others, mandatory licensing and training, formal participation in an association or society, acting with integrity and objectivity, the need for commissions, and public acknowledgement as a profession. T F 20. The most widely accepted rules governing conduct is the National Association of Realtors@ Code of Ethics. All answers are true except: 4,6,11,18, 19 CHAPTER 2:ETHICS HISTORY & ENFORCEMENT THE CODE OF ETHICS OF THE NATIONAL ASSOCIATION OF REALTORS@ The Code of Ethics of the National Association of Realtors@ was first adopted on July 29, 1913, at the sixth Annual Convention of the National Association of Real Estate Boards (Association's name changed in 1974 to National Association of Realtors@). The Code was first adopted as "Rules of Conduct" to be recommended to real estate boards for voluntary adoption. Compliance with the Code was made a condition of membership in the National Association in 1924, and has remained so to date. The Bylaws of the National Association, Article IV, Code of Ethics, state: Section 1. Each Member Board shall adopt the Code of Ethics of the National Association as a part of its governing regulations for violation of which disciplinary action may be taken. Section 2. Any Member Board, which, shall neglect or refuse to maintain and enforce the Code of Ethics with respect to the business activities of its members may, after due notice and opportunity for hearing, be expelled by the Board of Directors from membership in the National Association. The establishment of a Code of Ethics recognizing high standards of business practice and professional conduct by real estate practitioners was a primary reason for the establishment of the National Association in Individuals of integrity wanted to ensure honorable, faithful, and competent service to clients, customers, and other members of the public. They 2

6 believed that through their collective efforts, a national policy could be established and the general welfare could be served. The history of their early meetings reflect the desire to avoid careless or uninformed advice to those who relied upon them and to avoid the use of special knowledge to prey upon the unsuspecting and unsophisticated. In 1912 Edward S. Judd, President of the National Association, in accepting the presidency, "asked for a formal commitment by the voting body to a specific, written Code of Ethics. The first paragraph of that historic code for real estate practice, adopted in 1913, established the tone for the 23 separate ethical precepts, which followed. It read: "The real estate agent should be absolutely honest, truthful, faithful, and efficient. He should bear in mind that he is an employee - that his client is his employer and is entitled to the best service the real estate man can give - his information, talent, time, services, loyalty, confidence, and fidelity." The Code of Ethics of the National Association has survived as a viable guide because as times have changed, new needs and insights have been recognized and, as the law has developed, the Code has been amended. It has been amended 27 times since its adoption. The amendments all have reflected an interest in refining, on a continuing basis, the principles obligating Realtors@ and Realtor@-Associates to the highest and best standards of personal and professional conduct in the practice of real estate. Such amendments have sought to simplify, clarify, and amplify the ethical principles established to preclude antisocial business practices and to accommodate current legal, cultural, and national perspectives. The term Realtor@ has come to denote competency, fairness, and high integrity in business relations. No inducement of profit and no instruction from clients can ever justify departure from this ideal. Any Code of Ethics is meaningless unless it can be clearly understood by those who must live by it and employ it. To interpret and support the Code, the Professional Standards Committee of the National Association has adopted Standards of Practice, which are "interpretations" of the Code. Such Standards of Practice are applications of ethical principles to specify conduct in specific circumstances as related to one or more Articles of the Code of Ethics. ENFORCING THE CODE OF ETHICS The professional standard of practice plays an important role in local associations. It helps ensure honorable, faithful and competent service to members and their clients, customers, and other members of the public through the enforcement and disciplinary procedures, which accompany the Code. IS THE COMPLAINT AGAINST A REALTOR OR A REAL ESTATE AGENT? Not all real estate agents are Realtors. Only those agents who belong to a local Association of Realtors and have agreed, as a condition of membership, to abide by the Code are subject to the rules and regulations of the Code. IS THE VIOLATION AN ETHICS OR ARBITRATION ISSUE? # In an ethics complaint the allegation charges that a Realtor has violated one or more Articles of the Code of Ethics. # Arbitration is the process for resolving a business dispute about a real estate transaction that the parties have been unable to solve themselves. # Arbitration usually involves one member in disagreement with another member over the distribution of a commission. # Arbitration can also involve the resolution of a dispute between a member of the public and an Association member. # If an arbitration and an ethics issue are both the subject of the filing, the arbitration is brought to judgment first, followed by the resolution of the ethics issue. THE POWERS AND AUTHORITY OF THE ASSOCIATION 1. The Association cannot try members for violations of the state laws or any other laws. This authority rests with the states disciplinary authority. The jurisdiction of the Association covers only violations of membership duties and the Code of Ethics. 2. The Association cannot suspend or revoke licenses. 3. Ethics proceedings cannot require members to pay complainants monetary damages, punitive awards, or payment for repairs or replacement. 4. The association can use one of the following methods to discipline a member: a. Issue a letter of warning or reprimand. b. Require attendance at an ethics refresher course or other appropriate training program. c. Fine the member up to $5,000 (Note: fines are not awarded to the complainant, but are retained by the association). d. Place the member on probation or membership suspension. 3

7 e. Expel the member from membership. 5. The Association may arbitrate certain money disputes and must arbitrate in certain situations. However, a member of the public must agree in writing to arbitrate and to be bound by the decision of the hearing panel. 6. An arbitration award cannot be more than the amount in dispute. The Association does not award punitive damages 7. If the complainant is also seeking civil remedies in the courts, the Association will usually wait the outcome of those proceedings before moving ahead with an ethics complaint. WHO CAN FILE AN ETHICS COMPLAINT Anyone can file an ethics complaint against an Association member even if they themselves are not members. The Complaint must: # Allege violations of a specific Article or Articles. # Be in writing, dated and signed by the complainant. # State the facts surrounding the case. # Include any necessary supporting documentation. # Be filed within 180 days after the facts become known. # The complaint must be filed with the Association having jurisdiction over the individual named in the complaint. HOW IS AN ETHICS COMPLAINT FILED # Complete, sign, and date the Ethics Complaint form which identifies the Realtor in question as the respondent. # List the Article(s) of the Code of Ethics you believe the Realtor has violated. # Attach an explanation of the circumstances and facts surrounding the complaint. # Attach copies of all pertinent documents such as listing agreements, purchase and sales agreements, letters etc. # Forward the entire package to the Director of Member Services. # The Grievance Committee reviews the complaint. WHO MAY FILE AN ARBITRATION REQUEST! Realtors and non-realtor members who are principal brokers.! Realtors or non-realtor members who are not the principal provided his or her principal broker joins in the request and the other party is from another firm.! Realtors, Realtor Associates, and Non-Resident members who are affiliated with the same firm, provided each party agrees to be bound by the arbitration decision.! Clients or customers of the Realtor. AN ARBITRATION REQUEST MUST 1. Be in writing 2. Indicate the amount in dispute 3. Be filed within 180 days after the facts became known. The Association provides Arbitration as a service to its members. Arbitration is not a disciplinary proceeding, nor does it award punitive damages. By becoming and remaining a member of the Association, each Realtor binds himself or herself to arbitrate certain disputes. HOW IS AN ARBITRATION REQUEST FILED 1. List the Realtors@ involved as Respondents on the form. 2. Indicate the amount in dispute. 3. Include an explanation of the situation; DO NOT file ethics violations with this form. Ethics must be addressed in a separate filing. 4. Attach copies of any and all pertinent documents, which support your claim. 5. An Arbitration deposit of $ If an individual is not a Realtor@, the individual will be asked to sign an arbitration agreement indicating their commitment to abide by the decision of the Hearing Panel. 7. Send all items to the attention of the Director of Member Services. 8. The request is then reviewed by the Grievance Committee to determine if it meets the Association s criteria for an arbitrable matter. THE ROLE OF THE GRIEVANCE COMMITTEE There are two Association committees, which handle the matters of ethics and arbitration. These committees are the Professional Standards Committee and the Grievance Committee. In Ethics Issues, the Grievance Committee reviews the written complaints and requests a reply from the Respondent. The committee then conducts its investigation and determines whether the complaint has sufficient merit for further consideration. The Committee does not determine the guilt or innocence but will either: 4

8 # Forward the case for a hearing to the Professional Standards Committee. # Dismiss the case as unfounded, frivolous, harassing, or not applicable under the Realtor@ Code of Ethics. # Postpone its decision to await more information. # Determine that the case may be more appropriate as arbitration. If the complaint is dismissed, an individual has a right to appeal the dismissal to the Board of Directors. In an appeal, the Directors examine the materials submitted to the Grievance Committee and can either uphold or overturn the Committee s decision. If the complaint is worthy, it will be forwarded to the Professional Standards Committee for a hearing. In Arbitration Issues the committee s role is to determine if the matter is subject to arbitration by the standards of the Association. Depending on the circumstances, arbitration is sometimes a duty and sometimes a privilege for Realtors@. The committee must determine whether the situation fits into the duty or privilege category. It does this by determining: # Whether you are allowed under the rules to invoke the arbitration. # Whether the controversy may properly be resolved by arbitration. # Whether the arbitration is mandatory or voluntary to the people involved. # Whether the amount in dispute is too small or too large for the Association to deal with. # Whether the matter is too legally complex for the association to properly handle. If the Grievance Committee decides that the matter is outside the scope to handle, the parties are then released from their obligations to submit to the arbitration. If a matter is arbitrable, an informal mediation procedure is available as a preliminary, voluntary alternative to arbitration. Mediation is a means of helping people to negotiate a settlement of a dispute, and no binding decision or award is made other than by the agreement of the parties. As with ethics complaints, you may also appeal a dismissal of an arbitration request to the Association s Board of Directors. ROLE OF THE PROFESSIONAL STANDARDS COMMITTEE The function of this committee is to hold ethics and arbitration hearings. Hearings provide an opportunity for the Complainant and Respondent to explain their sides of the story by presenting testimony, evidence, and witnesses. The principal parties are given 21 days notice as to the hearing date, time and location. In the case of a sales agent his or her broker have a right to be present at the hearing. Once all the facts have been presented, the Hearing Panel, composed of trained and seasoned members of the Association who have been chosen on the basis of their experience, temperament, and objectivity, will determine whether the Code of Ethics has been violated or, in the case of arbitration, how the dispute should be resolved. The entire ethics or arbitration process usually takes a minimum of 75 days. In an ethics complaint, a Realtor s personal and professional reputation can be at stake. Because of this, Grievance Committee members are specially trained to ensure that a complete, impartial investigation is conducted so that all the relevant facts are presented before a decision is reached. Test Your Knowledge T F 1. The first code of ethics was adopted by the NAR T F 2. The NAR code was originally called the Rules for Conduct. T F 3. The Code was a requirement of membership to NAR from inception day. T F 4. The Code was made a condition of membership to NAR in T F 5. The Code was established to create high standards of business practice and Professional conduct by real estate practitioners. T F 6. The idea of the Code was to avoid having agents prey upon unsuspecting and unsophisticated individuals. T F 7. The Code permitted agents to use their skill and knowledge to their best advantage. T F 8. The Code of Ethics consists of 23 separate precepts. 5

9 T F 9. The Code requires that an agent be truthful, faithful, and efficient. T F 10. The Code requires that an agent give their client their information, talent, time, services, loyalty, confidence, and fidelity. T F 11. The Code of Ethics has been amended 28 times since its inception in order to keep up with the times. T F 12. In its original form the Code was written entirely in a masculine format. T F 13. The term Realtor@ today denotes competency, fairness, and high integrity. T F 14. Any real estate agent or broker can call themselves Realtor@. T F 15. The Code of Ethics is binding on Realtors@ and non-realtors@. T F 16. In an ethics complaint the allegations are that there has been a violation of the Code of Ethics. T F 17. Arbitration is the process used for resolving a dispute about a real estate transaction. T F 18. Arbitration usually involves a dispute over an agent s commission split with his/her broker. T F 19. Arbitration cannot involve a dispute between a Realtor@ and a member of the general public. T F 20. If an arbitration and an ethics issue are filed at the same time, they are heard together as one case. T F 21. The Association of Realtors@ can try members for violations of state law. T F 22. Monetary damages and punitive awards are often part of judgments in ethic cases brought before the association. T F 23. The Association can fine members up to $5000 in an ethics violation hearing. T F 24. A member of the general public filing a complaint must agree in writing to arbitrate and be bound by the decision of the hearing. T F 25. A non-member cannot file an ethics complaint. T F 26. Complaints must be filed within 180 days after facts become known. T F 27. Complaints can be filed and heard at any Association office. T F 28. Ethics complaints are first reviewed by the Grievance Committee. T F 29. Arbitration requests can be filed by either agent or broker. T F 30. An arbitration request must be in writing. T F 31. The Association provides Arbitration as a service to its members. T F 32. By being a member of the Realtor s@ Association, Realtors@ bind themselves to arbitrate certain disputes. T F 33. Arbitration filings require a certain procedure and a monetary deposit. T F 34. The two Association committees that handle the matters of ethics and arbitration are the Professional Standards Committee and the Grievance Committee. T F 35. In Ethic issues the Grievance Committee reviews the complaints and requests a reply from the Respondent. T F 36. The Grievance Committee does not determine guilt or innocence in a case. T F 37. The Grievance Committee can dismiss a case to be unfounded, frivolous, or harassing. T F 38. If a complaint is dismissed there is no right of appeal. 6

10 T F 39. In an arbitration matter, the Grievance Committee must determine whether a situation fits into the duty or privilege category. T F 40. The Grievance Committee must follow certain guidelines in determining duty or privilege. T F 41. One of the considerations that is reviewed by the committee is whether or not the amount of the dispute is too small or too large for the Association to deal with. T F 42. Another consideration is whether the matter is too legally complex for the Association to properly handle. T F 43. If the Grievance Committee decides that the matter is outside their scope to handle, the parties are released from their obligations to submit to arbitration. T F 44. Informal mediation is a preliminary alternative to arbitration. T F 45. The Professional Standards Committee holds ethics and arbitration hearings. T F 46. The principals must be given a least30 days notice prior to a hearing. T F 47. The Hearing Panel is made up of Association members who have been chosen on the basis of their experience, temperament, and objectivity. T F 48. The ethics and arbitration process usually takes a minimum of 75 days. T F 49. Grievance committee members are specially trained to ensure that a complete, impartial investigation is conducted before a decision is rendered. T F 50. In an ethics complaint, a Realtor s personal and professional reputations are at stake. All are true except: 3,7,14,15,18,19,20,21,22,25,27,29,38,46 CHAPTER 3: ETHICS AND PROCURING CAUSE Procuring Cause a controversial subject amongst real estate practitioners has taken on new meanings and new definitions. Under a sub-agency status procuring cause was much easier to define and judicate, but with the advent of buyer agency and buyer agency contracts procuring cause becomes a much more complicated subject. Often times procuring cause hearings are tinged with ethical misconduct and sometimes even license law violations. The professionalism or the lack of it most poignantly comes out when money is involved. Guidelines have been set up by the National Association of Realtors@ to help make determinations in cases of procuring cause. Procuring Cause is not just dependent upon the first conversation with a client or customer, or the first signed piece of paper. Procuring Cause is a series of events leading up to a transaction and can include any number or combination of factors. The objective of an arbitration panel is to weigh carefully and impartially the whole course of conduct of the parties, and to render a reasoned peer judgment as a proper award in arbitration. The following factors are typical, but not all-inclusive, of the considerations by an arbitration panel. 1. What is the nature of the transaction bringing the necessity to arbitrate? 2. Was the property listed for sale, rent, or management? 3. Who was the listing agent? 4. Was there a listing agreement, a buyer agency contract or other agreement? Was it exclusive right to sell, exclusive agency, open, or some other form of contractual agreement? 5. Was the agreement in writing? 7

11 6. Was the agreement in effect at the time the dispute arose? 7. Who was the cooperating broker or brokers? 8. Are all the appropriate parties to the matter joined? 9. Is or was the matter the subject of litigation? 10. Were the parties acting as subagents, buyer brokers, or some other capacity? 11. Did any of the cooperating brokers have an agreement, written or otherwise, to act as agent or in some other capacity on behalf of any of the parties? 12. Were any of the brokers (including the listing agent) acting as a principal in the transaction? 13. Were all disclosures mandated by law or Code of Ethics complied with? 14. Who first introduced the ultimate purchaser or tenant to the property? 15. When or how was the first introduction made? 16. Did the original introduction of the purchaser or tenant to the property start an uninterrupted series of events leading to the sale, or was the series of events hindered or interrupted in any way? 17. If there was an interruption or break in the original series of events, how was it caused, and by whom? 18. Did the broker making the initial introduction to the property maintain contact with the purchaser or tenant, or could the broker s action have reasonably been viewed by the buyer or tenant as a withdrawal from the transaction? 19. Did the broker making the initial introduction to the property engage in conduct (or fail to take some action) which caused the purchaser or tenant to choose to utilize the services of another broker? 20. Was there interference in the series of events from any outside or intervening cause or party? 21. What were the broker s relationships with respect to the seller, the purchaser, the listing broker, and any other cooperating brokers involved in the transaction? 22. What offers of cooperation and compensation were extended to cooperating brokers acting as subagents, buyer brokers, or to brokers acting in any other capacity? 23. If an offer of cooperation and compensation was made, how was it communicated? 24. If the cooperating brokers were subagents, was there a faithful exercise of agency on their part, or was there any breach or failure to meet the duties owed the principal? 25. If the cooperating brokers were buyer agents or were acting in a non-agency capacity, were their actions in accordance with the terms and conditions of the listing broker s offer of cooperation and compensation? 26. If more than one cooperating broker was involved was either aware of the other s role in the transaction? # How and when did the second broker enter the transaction? # Was the second cooperating broker aware of any prior introduction of the purchaser to the property by the listing broker or by another cooperating broker? 27. Was the entry of any cooperating broker into the transaction an intrusion into an existing relationship between the purchaser and another broker, was it the result of abandonment, estrangement of the purchaser, or at the request of the purchaser? 28. Did the cooperating broker (or second broker) initiate a separate series of events, unrelated to and not dependent on any other broker s efforts, which led to the successful transaction? 29. Is there any other information that would assist the Hearing Panel in having a full, clear understanding of the giving rise to the arbitration request or in reaching a fair and equitable resolution of the matter 8

12 Test Your Knowledge Some of the following statements would be important considerations by a committee in determining procuring cause and some are misconceptions. Please indicate which would be important (True) factors to know in determining procuring cause and which would be un-important (False). T F 1. Procuring cause is established by showing a client a home. T F 2. Was the property listed for sale, rent, or management? T F 3. Who was the listing agent? T F 4. A listing or buyer agency contract is not important? T F 5. Was the listing agreement exclusive right to sell, exclusive agency, or an open listing? T F 6. Whether a buyer agency contract is exclusive or non-exclusive does not matter? T F 7. Was the agreement in writing or verbal? T F 8. Was the agreement in effect the time the dispute arose? T F 9. Was the commission in dispute satisfactory for the time involved? T F 10. Are all the appropriate parties to the matter joined as parties to the transaction or by contract. T F 11. Is or was the matter the subject of litigation? T F 12. The agency or non-agency relationship of the brokers? T F 13. Were any of the brokers/agents acting as a principal in the transaction? T F 14. Were all disclosures mandated by law or Code of Ethics complied with? T F 15. Who first introduced the ultimate purchaser or tenant to the property? T F 16. When or how was the first introduction made? T F 17. Did the original introduction of the purchaser or tenant to the property start an uninterrupted series of events leading to the sale, or was the series of events hindered or interrupted in any way? T F 18. How was an interruption or break in the original series of events caused, and by whom? T F 19. Did the broker making the initial introduction to the property maintain contact with the purchaser or tenant? T F 20. Could the broker s action have reasonably been viewed by the buyer or tenant as a withdrawal from the transaction? T F 21. Did the broker making the initial introduction to the property engage in conduct(or fail to take some action) which caused the purchaser or tenant to choose to utilize the services of another broker? T F 22. Was there interference in the series of events from any outside or intervening cause or party? T F 23. What offers of cooperation and compensation were extended to cooperating brokers. T F 24. If an offer of cooperation and compensation was made, how was it communicated? T F 25. If the cooperating brokers were buyer agents or were acting in a non-agency capacity, were their actions in accordance with the terms and conditions of the listing broker s offer of cooperation and compensation? T F 26. Was either broker aware of the other s role in the transaction? T F 27. How and when did the second broker enter the transaction? 9

13 T F 28. Was the second cooperating broker aware of any prior introduction of the purchaser to the property by the listing broker or by another cooperating broker? T F 29. Was the entry of any cooperating broker into the transaction an intrusion into an existing relationship between the purchaser and another broker, or was it the result of abandonment or estrangement of the purchaser, or was it at the request of the purchaser? T F 30. Did the cooperating broker (or second broker) initiate a separate series of events, unrelated to and not dependent on any other broker s; efforts, which led to the successful transaction? All are True except: 1,4,6,9. YOU BE THE JUDGE CASE STUDY: ONE- CHEEP/ASSIST REALTY AND CARELESS/GUIDE YOU RITE REALTY. Sellers, Mary & John Cheep list their property with Assist Realty, under an Exclusive Agency*, for 90days,offering a co-op commission through the MLS of 1%. (* In an Exclusive Agency the seller retains the right to market and sell the property without compensating the listing broker in accordance with the Listing Agreement.) Joe Careless, of Guide You Rite Realty, shows the home to his buyers, Mr. & Mrs. Bargen Hunter. Upon arriving at the home there are two signs posted on the lawn, an Assist Realty sign and a FSBO sign. When the Hunters inquire, Joe Careless, not knowing any better, tells them that the seller has forgotten to take their FSBO sign down, and proceeds to show them the home. They show no interest in the home and look at additional homes with Joe Careless over the next 30 days. After which time they tell Joe they are not going to look for a while. Two weeks later they drive buy the Cheep home and still see the two signs on the property. They call the FSBO phone number on the sign and discover that the seller is willing to work directly with them and negotiate without the assistance of either broker. A contract is negotiated and the closing occurs once the listing has expired with the original broker. Guide You Rite Realty files a procuring cause case against Assist Realty and makes a claim for the 1% commission. GENERAL QUESTIONS RELATING TO THE CASE: $ Does Guide You Rite Realty have a claim for arbitration? $ Are all the appropriate parties in the matter joined? (Are both firms Realtors@) $ Is the matter a subject of civil litigation? $ Did the buyers agent have written contractual agreements with the buyers? $ Did the original introduction of the buyers to the property start an uninterrupted series of events leading to the sale? $ Did the agent making the initial introduction to the property maintain contact? $ What offers of cooperation and compensation were extended to the cooperating brokers? $ Was the seller & listing agency aware of any prior introduction of the buyer to the property? $ Possible misinformation by either agent to their clients Scenario One: No Written Buyer Agency Contract $ Listing Contract with no survival provision. $ Listing Contract with a 6-month survival provision. $ A blanket policy statement by Listing Agency of no collected commission, 10

14 no payout to co-op. If a co-op were to be paid who would owe the commission? $ The seller to the Buyer Agency. $ The Listing Office to the Buyer Broker. $ The Seller to the Listing Office. $ The seller to the listing office and the listing office to the Buyer Agency. $ Would arbitration be binding on the seller, if no arbitration agreement had been signed by the seller? Who would have to file a civil suit to collect their commission? Scenario TWO: A Non Exclusive Written Buyer Agency Contract for 90 days. $ Buyer Agency Contract with no survival provision. $ Buyer Agency Contract with a 6 month survival provision. $ A blanket policy statement by Listing Agency of no collected commission, no payout of co-op. If a co-op were to be paid who would owe the commission? $ The seller to the Buyer Agency. $ The Listing Office to the Buyer Broker. $ The Seller to the Listing Office. $ The seller to the listing office and the listing office to the Buyer Agency. $ The Buyer to the Buyer Broker. $ Would arbitration be binding on the buyer, if no arbitration agreement had been signed by the buyer? Who would have to file a civil suit to collect their commission? Scenario Three: An Exclusive Written Buyer Agency Contract for 90 days. $ A Buyer Agency Contract with no survival provision. $ A Buyer Agency Contract with a 6-month survival provision. If a co-op were to be paid who would owe the commission? $ The seller to the Buyer Agency. $ The Listing Office to the Buyer Broker. $ The Seller to the Listing Office. $ The seller to the listing office and the listing office to the Buyer Agency. $ The Buyer to the Buyer Broker. $ Would arbitration be binding on the seller, if no arbitration agreement had been signed by the seller? Who would have to file a civil suit to collect their commission? CASE STUDY TWO: JOHNSON/JONES/RODRIGUEZ A real estate agent, Jack Johnson, begins to work with buyers, Diane & Melvin Jones as the buyer s designated agent without entering into a buyer agency contract. Jack shows Diane & Melvin several homes and presents a succession of two different offers, on two different properties, offered through co-op agencies, none of which are negotiated to a successful conclusion. Jack contacts the buyers over the next three-week period and is unable to bring them back out to look at additional homes. In the meantime, Diane & Melvin begin working with a new real estate agent, Mark Rodriguez and sign a non-exclusive buyer agency contract with Mark. After showing several new properties Mark is asked by the buyers to show them a home previously shown to them by Jack. They had previously made an offer to purchase the home through Jack but were unable to get the sellers to accept their offer. After seeing the property, Diane & Melvin put in another offer on that property through Mark. 11

15 The contract to purchase was accepted by the seller after several counter offers. Mark has brought the transaction to a SUCCESSFUL CLOSING to the satisfaction of his clients, Diane & Melvin. After the closing Jack Johnson files for an arbitration and ethics violation against Mark Rodriguez and makes a claim to the commission. ISSUES TO REVIEW: 1. Does Jack Johnson have a valid claim for arbitration? 2. Does Jack Johnson have a valid claim for an ethics violation? 3. Are all the appropriate parties in the matter joined? (Are both agents Realtors) 4. Is the matter a subject of civil litigation? 5. Did any of the agents have written contractual agreements with the buyers? What effect does the non-exclusive buyer agency have on the transaction? 6. Did the original introduction of the buyers to the property start an uninterrupted series of events leading to the sale? 7. Did the agent making the initial introduction to the property maintain contact? 8. Did the agent making the initial introduction to the property engage in conduct (or fail to take some action) which caused the purchaser to utilize the services of another agent? 9. Ethically or otherwise was there interference in the series of events from any outside party? 10. How did compensation come into play? 11. How and when did the second agent enter the transaction? 12. Was the second agent aware of any prior introduction of the buyer to the property? 13. Was the entry of the second agent an intrusion into an existing relationship? 14. Did the second agent initiate a separate series of events, unrelated to and not dependent on the previous agent s efforts? CASE STUDY THREE: KELLY/MARKEWICZ/LOPEZ Yolanta Markewicz is attending an open house as the designated agents for the seller. In walked Lisa Lopez, a new comer to the area. Lisa has been working with another agent, Bill Kelly, who has a non- exclusive buyer agency contract to represent the Lisa. Upon entering the home Lisa informs Yolanta that she already has an agent; and wishes to continue to work with her own agent, because she wants representation in the transaction. She, also informed Yolanta, that her agent had previously driven her past the home and attempted to make an appointment to show her the home, but the property was unavailable for showing and Bill Kelly was encouraged to view the home with his client at the up coming open house. Due to a conflict in schedule, Lisa s agent was unable to attend the open house with her and encouraged her to look at the home on her own, present his business card to any agents present, ask the agents any questions they might have, and then come back to him to write the offer to purchase. After inquiring as to her needs, Yolanta allowed Lisa to go through the home and offered to answer any additional questions she might have. After seeing the home, Lisa expressed her love for the home and indicated that she would go back to Bill Kelly to write the offer and have it presented by her agent, Bill Kelly. Yolanta informed Lisa that a lot of people had viewed the home that day, and by waiting for Bill Kelly to write the offer, it could cause her to loose the home to another prospective buyer. She told Lisa that she could be fair to both Lisa & the Seller and could write the offer for her and function as a Dual Agent. Lisa agreed to sign the Dual Agency form and the contract was written by Yolanta and presented to the seller, who quickly agreed to the offered price and conditions. Upon discovering the turn of events, Bill Kelly filed an ethics complaint, an arbitration dispute, and a disciplinary complaint with the state licensing authority. ISSUES TO REVIEW: 1. Were proper disclosures made by Yolata(agency non-relationship-ministerial acts, dual agency, other)? 2. Did inquiring into Lisa s needs establish an undisclosed dual agency? 12

16 3. Did writing an offer for Lisa breach a relationship with the seller? 4. Did inducing the Lisa to write a contract with Yolanta infringe on another agent s relationship? 5. Did Lisa s relationship with the buyers represent a breach and ethical misconduct in relation to the seller and buyer? 6. Was Lisa really the seller s agent, buyer s agent or a dual agent? 7. Did the buyer enter into Dual Agency with informed Consent? 8. How did Fred Bill Kelly s non-exclusive agreement with Lisa effect his ability to collect a commission? 9. Did Yolanta violate any state licensing laws? 10. Does Bill Kelly have any claim to the commission? 11. Did Bill Kelly engage in conduct or fail to take some action, which caused the purchaser to choose to utilize the services of another agent? 12. How does commission come into play/ Listing Agreement? Buyer Agency Agreement? 13. Was the entry of the listing agent an intrusion into an existing relationship or was it the result of abandonment or estrangement of the purchaser by their agent? 14. Did Yolanta initiate a separate series of events, which led to the successful transaction? 15. Did the buyer really receive representation by Yolanta? Procuring cause is not cut and dry and therefore all these cases could have a different resolution depending on the perspective of the 5 people sitting on the hearing panel. As you review these cases try and analyze them from different perspectives and see if you come to the same conclusion twice. NAR CODE OF ETHICS DUTIES TO CLIENTS AND CUSTOMERS Article 1 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's interests 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) Standard of Practice 1-1 Realtors, when acting as principals in a real estate transaction, remain obligated by the duties imposed by the Code of Ethics. (Amended 1/93) Standard of Practice 1-2 The duties the Code of Ethics imposes are applicable whether Realtors are acting as agents or in legally recognized non-agency capacities except that any duty imposed exclusively on agents by law or regulation shall not be imposed by this Code of Ethics on Realtors acting in non-agency capacities. As used in this Code of Ethics, "client" means the person(s) or entity(ies) with whom a Realtor or a REALTOR 's firm has an agency or legally recognized non-agency relationship; "customer" means a party to a real estate transaction who receives information, services, or benefits but has no contractual relationship with the Realtor or the REALTOR 's firm; "agent" means a real estate licensee (including brokers and sales associates) acting in an agency relationship as defined by state law or regulation; and "broker" means a real estate licensee (including brokers and sales associates) acting as an agent or in a legally recognized non-agency capacity. (Adopted 1/95, Amended 1/99) Standard of Practice 1-3 Realtors, in attempting to secure a listing, shall not deliberately mislead the owner as to market value. Standard of Practice 1-4 Realtors, when seeking to become a buyer/tenant representative, shall not mislead buyers or tenants as to savings or other benefits that might be realized through use of the REALTOR 's services. (Amended 1/93) Standard of Practice 1-5 Realtors may represent the seller/landlord and buyer/tenant in the same transaction only after full disclosure to and with informed consent of both parties. (Adopted 1/93) Standard of Practice 1-6 Realtors shall submit offers and counter-offers objectively and as quickly as possible. (Adopted 1/93, Amended 1/95) Standard of Practice 1-7 When acting as listing brokers, Realtors shall continue to submit to the seller/landlord all offers and counter-offers until closing or execution of a lease unless the seller/landlord has waived this obligation in writing. Realtors shall not be obligated to continue to market the property after an offer has been accepted by the seller/landlord. Realtors shall recommend that sellers/landlords obtain the advice of legal counsel prior to acceptance of a 13

17 subsequent offer except where the acceptance is contingent on the termination of the pre-existing purchase contract or lease. (Amended 1/93) Standard of Practice 1-8 Realtors acting as agents or brokers of buyers/tenants shall submit to buyers/tenants all offers and counter-offers until acceptance but have no obligation to continue to show properties to their clients after an offer has been accepted unless otherwise agreed in writing. Realtors acting as agents or brokers of buyers/tenants shall recommend that buyers/tenants obtain the advice of legal counsel if there is a question as to whether a preexisting contract has been terminated. (Adopted 1/93, Amended 1/99) Standard of Practice 1-9 The obligation of Realtors to preserve confidential information (as defined by state law) provided by their clients in the course of any agency relationship or non-agency relationship recognized by law continues after termination of agency relationships or any non-agency relationships recognized by law. Realtors shall not knowingly, during or following the termination of professional relationships with their clients: 1)reveal confidential information of clients; or 2)use confidential information of clients to the disadvantage of clients; or 3)use confidential information of clients for the REALTOR 's advantage or the advantage of third parties unless: 1. clients consent after full disclosure; or 2. Realtors are required by court order; or 3. it is the intention of a client to commit a crime and the information is necessary to prevent the crime; or 4. it is necessary to defend a Realtor or the REALTOR 's employees or associates against an accusation of wrongful conduct. Information concerning latent material defects is not considered confidential information under this Code of Ethics. (Adopted 1/93, Amended 1/01) Standard of Practice 1-10 Realtors shall, consistent with the terms and conditions of their real estate licensure and their property management agreement, competently manage the property of clients with due regard for the rights, safety and health of tenants and others lawfully on the premises. (Adopted 1/95, Amended 1/00) Standard of Practice 1-11 Realtors who are employed to maintain or manage a client's property shall exercise due diligence and make reasonable efforts to protect it against reasonably foreseeable contingencies and losses. (Adopted 1/95) Standard of Practice 1-12 When entering into listing contracts, Realtors must advise sellers/landlords of: 1) the REALTOR 's general company policies regarding cooperation and the amount of any compensation that will be offered to subagents, buyer/tenant agents and/or brokers acting in legally recognized non-agency capacities; 2) the fact that buyer/tenant agents or brokers, even if compensated by listing brokers, or by sellers/landlords may represent the interests of buyers/tenants; and 3) any potential for listing brokers to act as disclosed dual agents, e.g. buyer/tenant agents. (Adopted 1/93, Renumbered 1/98, Amended 1/99) Standard of Practice 1-13 When entering into buyer/tenant agreements, Realtors must advise potential clients of: 1) the REALTOR 's general company policies regarding cooperation and compensation; and 2) any potential for the buyer/tenant representative to act as a disclosed dual agent, e.g. listing broker, subagent, landlord's agent, etc. (Adopted 1/93, Renumbered 1/98, Amended 1/99) Standard of Practice 1-14 Fees for preparing appraisals or other valuations shall not be contingent upon the amount of the appraisal or valuation. (Adopted 1/02) Standard of Practice 1-15 Realtors, in response to inquiries from buyers or cooperating brokers shall, with the sellers approval, divulge the existence of offers on the property. (Adopted 1/02) Article 2 Realtors shall avoid exaggeration, misrepresentation, or concealment of pertinent facts relating to the property or the transaction. Realtors shall not, however, be obligated to discover latent defects in the property, to advise on matters outside the scope of their real estate license, or to disclose facts which are confidential under the scope of agency or nonagency relationships as defined by state law. (Amended 1/00) Standard of Practice 2-1 Realtors shall only be obligated to discover and disclose adverse factors reasonably apparent to someone with expertise in those areas required by their real estate licensing authority. Article 2 does not impose upon the Realtor the obligation of expertise in other professional or technical disciplines. (Amended 1/96) Standard of Practice 2-2 (Renumbered as Standard of Practice /98) Standard of Practice 2-3 (Renumbered as Standard of Practice /98) 14