Photo by by Brookenovak
So Sue Me, Sue Me, What Can You Do Me?
Litigation is a very popular topic this week. Russell Shaw wrote about it in his recent post “An Open Letter to Ben Behrouzi” . Inman News wrote about it discussing the same law suit of Vlad Zablotskyy , who had his own take on the situation. There was even substantial discussion about another Inman article from February 2008, discussing litigation involving a Miami Blogger.
For the first 20 years I was in business, I had no experience with litigation. But if you are in business long enough, and you do enough business, someone will try to sue you. It doesn’t matter if you are really careful or if you did everything right. Those things only mean that when you are sued, you will probably win. It doesn’t mean that you will never be sued. Litigation is a fact of life In his documentary Born Rich Jamie Johnson IV (yes the Johnson & Johnson Johnsons) talks about being sued as a rite of passage for the rich kids whose lives he chronicled, sharing his experience as one of his friends sues him for defamation of character.
Doing the Right Thing
For example, can you imagine being sued for doing what the law required you to do? Several years ago, our company listed a property which was sold by a cooperating Buyer’s Agent. There was some negotiation between the buyer and seller, and eventually an agreement was reached on price, with a financial concession from the seller was acceptable to the buyer. After settlement, we were sued by the buyer, who claimed that we had forced him to pay too much for the property. According to the complaint, the buyer allegedly had a conversation with the seller immediately after closing where the seller allegedly “Why did you pay so much for our house? We would have sold it for less.”
When the case came to court, the Seller (our client), stated that this conversation never took place. Further, the Seller stated that they would nothave sold the property for any less then the agreed upon sale price. It was also evident that no one from our company ever spoke to the buyer directly prior to closing, and that we never negotiated with them directly. And of course there is one small fact that we presented for the judge’s consideration, even if the facts as presented by the buyer were true, all we had done was to obtain the highest price and best terms possible for our client, an responsibility of ours under Pennsylvania law as well as being our contractual obligation. Needless to say , we won, but not until we had appeared in court several times, and been very thankful that we had E&O insurance.
A Higher Authority
Then there was the time I felt like a Hebrew National Hot Dog. We had a tenant who left a property that he had rented for several years. In Pennsylvania the landlord is not obligated to send the tenant back their security deposit unless he or she are provided with the tenant’s new address in writing. This tenant had not provided us with a forwarding address, we are very careful, we sent regular and certified mail to the former address hoping that the mail would be forwarded or that he would be notified somehow of the inspection of the property. The mail was returned unopened and we had no idea where the tenant was until he sued us for treble damages.
We went to court and I explained to the judge that I could not have returned any money to him because he had failed to provide us with an address. I then showed her the returned mail, mentioning that we had gone well beyond the requirements of our laws. The Judge then said to me, “I understand what the law says Mr. Lublin, but since you are a professional you are being held to a higher authority”. I was stunned. I appealed the case, and an equally stunned apellate judge reversed the decision immediately, but I was still a upset that I had been sued.
The final chapter of this story came about 60 days later when a sheriff from a neighboring county appeared at our rental office asking for the former tenant’s address. It seemed that they had been looking for him for several years, on a murder charge, but had been unable to find him. Of course, when he sued us, he had provided his current address, which I was pleased to share with these officers. And so justice was found in the courts after all…
You Can’t Always Duck
There are more stupid law suits that I’ll share at some later date, but after they were done, we were still standing. And each time there was a lesson to be learned, and sometimes even an improvement to be made.
In the final analysis, I’m not sure that any one can be assured that they will never be involved in stupid litigation. Anyone can sue anyone over anything. It doesn’t mean they’re going to win. But being involved in a law suit isn’t the worst thing in the world. As long as you have done the proper thing, documented your actions, and are confident in your position, going to court is an experience like any other. Use it to make yourself better at your job. I can tell you that not being scared of the process and being resolute about your position are important to your success if you are sued. A snarling attorney once leaned over a conference table at me and yelled, “I’m an attorney! Do you know what that means?” To which I replied calmly, “Yes, of course I do, I hire guys like you!”
The problem with a self-policing industry: you have to be a narc
Ethics violations in the real estate industry can make or break a Realtor’s career, depending on the severity, so it would stand to reason that all would be mindful of the rules, but there are always individuals in the field that act as if the Code of Ethics is irrelevant.
An animated discussion on ethics training
“Does anyone else find it ironic that NAR – the trade association for Realtors – has to mandate that members take an ethics class every four years?” An agent who attended one of my company’s broker opens yesterday posed that question to the wine and cheese grazing attendees. Of course, that opened up an animated discussion on the value of etchics training and the lack of enforcement when the rules are violated.
One agent volunteered that the guy sitting next to her in her last ethics class played games on his cell phone and then cheated during the test at the end of the class. Seriously, dude? You cannot even pay attention long enough to pass what should be the easiest test you’ll ever have to take in your career? Perhaps he was just seeing how far he could push it by cheating during an ethics test, to see if anyone else around him caught the extreme irony there. None of the other agents around him – including the agent he cheated off – turned him in and the instructor didn’t notice.
This same agent later called one of my sellers and tried to convince him to break a listing contract with me, because he had a “guaranteed buyer” in the wings. The seller was an attorney, and this bozo tried to get me cut out of the deal, offering the seller a reduced fee to dump me. The seller held firm and directed the agent to call me, then the seller called to let me know about the conversation.
“But you know if you file something the other agent will know.”
It gets better. After the deal closed, I requested paperwork from our local Board of Realtors to file an ethics complaint. The person in charge said, “But you know if you file something the other agent will know.” Gee. Really? I asked her to send the paperwork over anyway.
I called the seller/attorney and asked him to repeat the conversation to me, because I was documenting it to file a complaint. He turned wishy washy on me at that point and his story changed from “The other agent tried to get me to dump you as the listing agent to cut you out” to “Well he really only asked a few questions and I told him to call you. He probably didn’t mean any harm by it.” So there goes my star witness, who doesn’t want to rock the boat.
I didn’t file the complaint. I resorted to the “turn the blind eye but never trust the sleazeball again” path. And that is what happens to almost all ethics issues I hear about / see in person.
That’s what happens when you have a self-policing group of “professionals” who would rather not “narc” on a fellow agent. After all you’re probably going to end up on the other side of a deal from this guy some day, right? The guy in my example has sold two of my houses since that run-in. Why tick him off by filing a complaint and going through all that hassle? If he stops bringing buyers to my properties then my sellers ultimately lose, right?
Boiling down the CoE
The NAR Code of Ethics takes up pages and pages of tiny print, and it runs each year in their trade magazine (I think it’s the January issue). Does anybody read that? Probably not many. I’d argue none of us ever should have to read it again. Simply follow this advice instead. The thousands of words in the Code boil down to one thing: Do unto other agents, and consumers, and clients, what you would have them do unto you. It’s the Golden Rule. Simple. Well, obviously not, for many agents and brokers.
The sad part is the agent in my example had no clue how close I was to filing that compaint, and if he did know he’d probably scratch his head and wonder why his actions were “wrong.” Making us take a one-day class every few years won’t “make” the unethical agents suddenly operate ethically. Most of them just don’t get it.
Ethics hearings in private a disservice to consumers?
Fight Club and real estate
For those of you that saw the movie ‘Fight Club’ you’ll remember that Rule #1 is “You do not talk about fight club,” followed closely by Rule #2, “You DO NOT talk about fight club.” Which, believe it or not, brings me to today’s topic: The Real Estate Code of Ethics and Arbitration. Article 17 obligates Realtors to resolve
fights disputes with another Realtor through arbitration (not litigation). Arbitration is conducted at the local board level, and I am not aware of a local board that doesn’t require arbitration to be confidential.
I respect that public internecine warfare amongst Realtors isn’t in the interest of our industry, and doesn’t belong in the public spotlight. I’m not here to advocate the collective airing of our dirty laundry. That said, I wonder if our collective agreement to keep our concerns confidential can inadvertently harm the consumer and ultimately makes all of us look a little shoddier?
To find the first arbitration guidelines created by NAR and distributed as a set of suggested rules for boards to follow, we have to travel all the way back in time to 1929. NAR’s first Code of Ethics & Arbitration Manual wasn’t created until 1973, and it credited a 1965 California Association of Realtors version as its model.
I can think of two instances in the past year where I was so appalled by the conduct of a fellow Realtor that I went to the trouble to inquire about how to lodge a Code of Ethics complaint with my local board. After weighing the time required to make a competent complaint and comparing it with the best case outcome (a closed-to-the-public hearing in which they were found to have violated the code of ethics), I decided not to pursue a complaint in both cases. My association’s bylaws (and probably yours) give it the power to discipline any member based on the results of a Code of Ethics hearing, “provided that the discipline imposed is consistent with the discipline authorized by the Professional Standards Committee of the National Association of REALTORS® as set forth in the Code of Ethics and Arbitration Manual of the National Association.”
“Sanctioning Guidelines” – (Appendix VII of Part 4 of the 2011 manual for the very curious), guides member boards to impose disciplinary consequences that are progressive and fair, taking all considerations into account. Sample first-time disciplinary actions include suggestions of a letter of warning, a fine (amounts range from $200 to $5,000 depending on the severity of the violation), and attendance at relevant education sessions. Not to sound defeatist, but a confidential letter of warning and a fine of around $200 doesn’t seem like an outcome worth investing much of my time in.
Practicing in the internet era
Given that we live and work in the internet era, and review sites like Yelp abound, it seems a bit odd to me that a local board might know of an agent with problem behavior that is documented yet choose to make that information unavailable to consumers. My understanding is that the results of a code of ethics hearing are confidential with disclosure authorized in a few situations, none of which deal with informing the public.
Many of my fellow colleagues feel that the best response to a bad agent is to be patient and give them enough time to work themselves out of business. I can respect and understand their hands-off approach. But what about the damage that individual does to our industry as a whole? While we whisper, warn in confidence and know amongst ourselves how awful they are, the public doesn’t get the benefit of our perspective. Deprived of it, they turn to consumer review sites like Yelp.
How do you think we, as an industry, can help consumers in their quest to find a trustworthy agent?
Realtors, we really need to get over ourselves already
Real estate now vs. 1987
In Real Estate, some things are always changing, like financing, education, laws, rules and technology. The two that will always remain constant, as long as they are within the law, are following our clients’ directions, and working with their best interests in mind. I’m not sure we always follow through with this, though.
Some of us knowingly take over priced listings. Some of us take listings that are out of our area of expertise. Some of us won’t show short sales or REOs. Some of us won’t show homes with low co-op splits. Some of us don’t have Supra/e-Keys, and miss out on those listings entirely.
Putting our interests first
When these things occur we are putting our own interests first, not our clients’. We may think that by having as many listings as possible is a good thing, that’s what we’re taught after all, isn’t it? It may not matter that some are overpriced, eventually, whether one month or four months down the line, the price will be reduced. It’s just a matter of time and money, for our clients, after all. The same can be said when we take listings outside our area of expertise, just to add on to our inventory. If we don’t know what we’re doing, on a short sale listing, for example, it will only cost our clients a lot of time and money. A lot.
By eliminating certain houses our clients see, that may already fit their criteria, we’re taking away their choices. Distressed sales account for close to 40% of the market. This is probably higher in some local markets. There is no legitimate way to ignore roughly 1/3 of the homes being sold. Co-op fees are often a touchy subject, especially when they are, not “enough.” If everyone utilized a Buyer Broker Agreement that stipulated what their fee was, the issue would take care of itself. Not being able to access listings with the use of Supra/e-Keys is a choice. Choosing not purchase one will mean agents will not be able to access Fannie Mae (and eventually, probably additional Gov REO homes) along with the listings that are already using them.
Our priorities versus theirs
We totally need to get over ourselves already. We are not bigger than our clients. Our priorities are not more important than theirs when it comes to the actual listing and selling of homes.
Recently, my awesome parents dug through a few boxes and rounded up one of my first art projects. About 25 years ago I did the poster featured above about my Mom, and her Real Estate career. It was for an Open House (no pun, honest!!!) for the elementary school where I attended first grade. It was just, what she did according to me way back then. Things are way more complicated now, than when I was six. There’s a heck of a lot more paperwork for one. But the same basic principle still applies.
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