Connect with us

Hi, what are you looking for?

The American GeniusThe American Genius

Opinion Editorials

Buyer Agents Warn of Mold! Seller’s Rights?

From a Seller’s point of view, the possibility of a Buyer’s Agent (or buyer) uploading candid yet unflattering photos presents a challenge – what is one to do if pictures such as the above are uploaded? … In response to the last question, Frank Llosa said: “One of the differences between problematic Redfin’s Sweet Digs blog (google redfin $50,000 fine ), and our service is that blogging about a property is essentially advertising a listing without permission.

From a Seller's point of view, the possibility of a Buyer's Agent (or buyer) uploading candid yet unflattering photos presents a challenge - what is one to do if pictures such as the above are uploaded? ... In response to the last question, Frank Llosa said: "One of the differences between problematic Redfin's Sweet Digs blog (google redfin $50,000 fine ), and our service is that blogging about a property is essentially advertising a listing without permission.

BE AWARE OF POSSIBLE MOLD. I am NOT a MOLD expert, but see photos and make sure you get it inspected. Also be aware of those with allergies & small children & elderly entering this home for preview. Mold can be remedied, so no need to 100% remove it from consideration. Also the bird under the deck is REAL. It really freaked me out!

Might this be an answer to picture-less listings? The above photo was uploaded to and attached with the above comments to a property listed in the MRIS MLS. What would you do if the above photo of one of your listings was uploaded to a public site with comment like, “house appears to have mold”?

FranklyMLS pushes the boundaries set by traditional MLS – it lets Buyers’ Agents upload photos of homes they have shown; part public service, part service to fellow Realtors. As of 6 July 2008, over seven hundred properties have been reviewed, and the database contains more than twenty-one thousand photos.

The current policy of is:

Anybody can remove any comment for any reason. Hence the Wiki format, so if the seller, or anybody, wants to flag a comment (and verify their email address) then it will be flagged and removed.

From a Buyer’s (and Buyer’s agents’) point of view, the ability to search an MLS unfiltered by Listing Agents’ necessary predilection and responsibility to portray a property in its best light is fantastic. Buyers are demanding more information – and more visual information – than ever before. In addition, with gas prices increasingly rising, being able to “preview” a home across the county – thanks to the candid point of view of a Buyer’s Agent, could prove very valuable. seems to help solve answer those demands.

Advertisement. Scroll to continue reading.

From a Seller’s point of view, the possibility of a Buyer’s Agent (or buyer) uploading candid yet unflattering photos presents a challenge – what is one to do if pictures such as the above are uploaded?’s existence raises as many questions as it answers. Notably –

– Is this the answer to photo-less listings?
– At what point can/should the seller prevent such pictures from being publicly displayed?
– What about the privacy implications? Does a seller of a vacant home relinquish all privacy when the property is put in the MLS?
– Will this be the push needed to force Listing Agents to put photos online (the way they should already)
– As a Buyer’s Agent, does E & O insurance cover this type of thing?
– Is this transparency gone too far, or a sign of the times? Buyers absolutely are demanding this candid, unfiltered information – should they have it?
– How is this different from the Redfin debacle that came about when they were blogging about houses? Or the apparently-defunct ShackYack?

In response to the last question, Frank Llosa said:

“One of the differences between problematic Redfin’s Sweet Digs blog (google redfin $50,000 fine), and our service is that blogging about a property is essentially advertising a listing without permission. That would be like me putting an ad on craigslist for another agent’s property without permission. You can’t do that.

Advertisement. Scroll to continue reading.

But with, we are within the boundaries of the MLS, so within this platform we have permission to advertise other listings.

Note that and many other sites offer “Listing Enhancements” that also are not approved by the listing agent. Like a Zillow Zestimate being posted on Redfin’s MLS listings. What if the listing agent doesn’t want a Zestimate next to their listing? Are they Zhit out of Zuck? Or what if they don’t want the links that added to their listing? With our site, if they don’t want the remarks or photos to be added, they can remove them.”

Personally, I love that this link is on each listing: (If you have a buyers agent, call them, NOT the listing agent. Why?)

There are quite a few similarities and parallels to the ongoing discussion about Zillow and a seller’s right to remove his or her property/Zestimate from the Zillow database. At what point should a seller or listing agent be able to dictate what information is put online? may have what the afore-mentioned Shackyack did not – critical mass to nurture and grow its database and popularity.

Advertisement. Scroll to continue reading.

Related Reading:

– Inman – Broker launches ‘Wiki MLS’ site and a corresponding Letter to the Editor

One of Sellsius’ opinions on Zillow and sellers’ rights

– A great discussion/debate between Joseph Ferrara and David G of Zillow

Advertisement. Scroll to continue reading.
Written By

Dad, Husband, Charlottesville Realtor, real estate Blogger, occasional speaker - Inman Connects, NAR Conferences - based in Charlottesville, Virginia. A native Virginian, I graduated from VMI in 1998, am a third generation Realtor (since 2001) and have been "publishing" as a real estate blogger since January 2005. I've chosen to get involved in Realtor Associations on the local, state & national levels, having served on the NAR's RPR & MLS groups. Find me in Charlottesville, Crozet and Twitter.



  1. Frank Jewett

    July 9, 2008 at 1:12 am

    What if the listing agent doesn’t want a Zestimate next to their listing? Are they Zhit out of Zuck?

    Yes. They Zhould have listened to brokers who wanted to protect the integrity of listings data two years ago, but they were Zhortsighted. It’s ironic that the upcoming tent revival Real Estate Connect conference has several Thursday sessions devoted to the discussion of what is essentially a dead issue: The future of the MLS. Shouldn’t people who pride themselves on being ahead of the curve be focused on Plan 9 from Washington?

  2. Tony Arko

    July 9, 2008 at 8:03 am

    A couple of things to note about the properties with buyers agent submitted photos; they are only for vacant properties and they are almost always foreclosures or abandoned short sales. Most are listed by agents that have so many foreclosure listings that they could care less what is out there and their clients are companies like JPMorgan and Liquidation Properties and Indymac bank. Doubtful if they are going to police the internet to ask that comments be removed.

  3. Jason Sandquist

    July 9, 2008 at 8:16 am

    Is FranklyMLS national database or possibly moving that direction?

    @Tony Yeah you think the banks would be happy buyers agents are putting more photos on than the drive by photos the listing agent took 6 mths prior

    @Jim point on with the demand for buyers demanding more and sooner rather than later that is the way it will be. I can’t believe how much of my clients time has been wasted because of agents misrepresenting information.

  4. Greg Cremia

    July 9, 2008 at 8:53 am

    I would be hesitant to post pictures and a bad review of a property. What if my next set of clients want to by said property and I have already made an enemy of the owner and their agent. To do my buyer clients justice I would have to hand them over to a neutral third party.

    Even the worst mold infested rat trap is a potential home to somebody. The buyers get transparency from a good buyers agent who shows them all their options and points out all of the pit falls.

    Besides, the black stuff in the picture looks more like mildew than mold, but who knows without a test.

  5. Paula Henry

    July 9, 2008 at 10:01 am

    This is a little more transparency and public information than I feel comfortable with. What if, like Greg said, it’s not mold? Have you placed yourself in a potential litigation situation? What we write online is always there for public review and scrutiny, we should be very careful.

    Taking pictures to send to a buyer client and sending my opinion is a lot different than putting them up for the world to see.

  6. Glenn fm Naples

    July 9, 2008 at 10:20 am

    I agree with Paula and Greg – putting information we are not experts within is great for a litigation situation – maybe someone needs to review the code of ethics here????

  7. Bob

    July 9, 2008 at 10:24 am

    This is lawsuit heaven for lawyers.

  8. Glenn fm Naples

    July 9, 2008 at 11:39 am

    Glad to see someone of Bob’s stature chiming in on this one.

  9. Ken Smith

    July 9, 2008 at 12:20 pm

    “This is lawsuit heaven for lawyers.” – Bob

    “maybe someone needs to review the code of ethics here????” – Glenn

    Absolutely! Couldn’t say it any better.

  10. Julie Emery

    July 9, 2008 at 3:28 pm

    There are more questions than answers here, but i can vouch for the fact that some listing agents do get their knickers in a knot if these kind of photos and comments show up on their listings!

    I believe that recent history would tend to support the trend that the information is going to get out there. I truly don’t see the problem with photographs. If a buyer is deterred from a property by seeing the photos, shoudn’t that happen before they’ve wasted their time (and their agents) by driving there in person? Comments can be dicey, but photographs would seem to be factual, no opinion involved.

  11. Glenn fm Naples

    July 9, 2008 at 3:42 pm

    Here is another question – can anyone tell the difference between mildew or mold?

  12. Bob

    July 9, 2008 at 3:53 pm

    Photographs can be doctored, but they can also be used to twist the facts.

    One other overlooked issue here – these are interior pictures of private property, and likely taken without permission of the owner. You don’t think that will get you sued?

  13. Glenn fm Naples

    July 9, 2008 at 4:13 pm

    My my Bob we are in a litigious mood today. LOL

  14. Hey Glenn,
    I think I was pretty clear with my all caps reference to not being a mold expert. I guess I could say “look at photo #4, no comment from me.” Go ahead sue me to saying that I am NOT a mold expert, but as a real estate expert I know enough to tell you when to get something checked out. Isn’t that our job? It sure as heck isn’t the listing agent’s job to warn buyers.

    Recently I took photos of a place that was infested by roaches. Ok, maybe they were cousins to the roach family, but would you want a 2 year old walking around in it? I have no problem speaking the truth. And if a broker wants to come after me for doing such, it would make great CNN coverage. XYZ brokerage sued to cover up roach infestation… yeah give me a break.

    I agree with you. If a photo was doctored and posted alongside a site, sure, they should be brought up on ethics and sued.

    As for permission… The MLS is the permission. Also these homes are vacant and the seller has allowed 100-200 persons, including X-Cons (since they can be licensed in Virginia) into their home.


  15. Barry Cunningham

    July 9, 2008 at 4:16 pm

    I love mold!!!!! Mold spels huge..and I mean HUGE profits. Give me a house with mold anyday! Especially if it is bank owned or in a short sale situation. much money to be made in a house full of mold!

    any agent who finds a home full of mold that’s not speaking with an experienced real estate investment company needs to seriously have their head examined!

    Little bit of advice the NAR won’t teach ya!

  16. Bob

    July 9, 2008 at 4:42 pm

    “As for permission… The MLS is the permission.”

    Yeah, that’ll stand up in court.

    @Barry – I was thinking the same thing.

  17. Bob

    July 9, 2008 at 4:46 pm

    @Glenn – Yep. The CYA mentality is in full swing. Been dealing with banks all day and just got off the phone with a buyer agent with a non-performing buyer who digs a deeper hole every time she speaks.

  18. Glenn fm Naples

    July 9, 2008 at 5:27 pm

    Frank – aren’t listing agents supposed to disclose such information? You might want to research photographing on private property from a public area versus from the interior. I almost got myself in problem on that issue.

    Bob – know you must be having an enjoyable day. I have been working with one of the attorneys here on revising addendum to contracts for short sales. 🙂

  19. Tchaka

    July 9, 2008 at 5:56 pm

    @Bob – It will stand up in a jurisdiction in which this specific MLS covers.
    @Barry – I hear ya!!
    @Glenn – You ask very good questions. IMO, transparency is key and I will generally support any moves in that direction.

  20. Paula Henry

    July 9, 2008 at 6:12 pm

    @Barry – I thought about you last week! Short sale, mold in the basement, I mean the ceiling and walls covered – it was bad. I have a contract, but wonder – How much would you expect to pay for something like this? Do you buy in Indiana?

  21. Dan Nesemeier

    July 9, 2008 at 6:53 pm

    Most of the comments I’ve read about properties listed at FranklyMLS are from agents looking through a buyer agent’s eyes. They aren’t any different than what a buyer’s agent would say to a client in person.

    I think we should remember agency laws here. I’m no lawyer, never will be, but I try to understand how agents should represent clients to the best of my ability. I take agency seriously and regardless of the type, either listing or selling, I do my best not to cross any legal or ethical lines. I try to stay aware!

    In that vein, the comments from agents at FranklyMLS are hard working people looking for buyers; they are looking to represent buyers against listing agents, and they are attemting to show how well they can represent a buyer if a customer chooses them. They have their buyer agency hat on. Like it or not it’s an adversarial (too strong of a word but it’s all I can think of at the moment) situation. I like to think if it more as co-opetition between agents but that isn’t really a word. Through pictures, internet accessability to those pictures, or even private distribution of pictures from buyer’s agent to client, FranklyMLS and agents who preview properties for clients speed up the process that has been traditionally done in cars with clients or in broker offices, supposedly under some heretofore unknown cone of silence. That’s a ridiculous pretense, don’t you agree? We have all pointed out obvious and potential problems with houses with buyers in tow even though we aren’t home inspectors, mold experts, or structural engineers. We have also been honest with listing agents when they call us for feedback, haven’t we, or do we just high five each other and ignore obvious problems to put buyers in jeopardy for the sake of the transaction?

    FranklyMLS brings a different and needed level of transparency; what was opaque is now suddenly clear and I think buyers who use the site appreciate that. None of us can say we’ve never pointed at a wall and say “that looks like mold”, or “I see water damage on the ceiling, fogged windows and bugs in the cabinet”. Let’s also not be hypocritical by taking the high road as a listing agent, claiming there’s some invasion of privacy when someone takes a picture or two in a vacant house. The house is publicly open to responsible people who guide buyers through the home sale process, and houses now get more exposure to smart buyers who will look at the totality of the listing, i.e. listing agent pictures, buyer agent pictures, price, comments and the rest before deciding to ask an agent to open the door. I think it’s good for for trade.

    Listing agents can not only flag FranklyMLS comments for removal if they want, but they can also talk to their clients about ways to mitigate problems with the property so that it will sell faster and post comments themselves about what the sellers are doing to get those problems taken care of. Listing agents can supplement existing pictures that show damage with those that show that the damage has been repaired! I submit responsible listing agents should be fully aware of issues with the house that are completely obvious and get those houses ready to sell before they are listed. Look at the house through a camera’s lens. If you can see it, buyers can too. You aren’t fooling anyone.

    When it comes to some listings we’ve all tried to put lipstick on a pig. We are now technologically equipped to convey both potential problems as well as mitigating circumstances, such as listing agent comments that state the list price reflects known issues, or the seller will repair items with an acceptable offer, or any number of variations. This is an immediate offset to any picture a buyer’s agent may take, and it provides even more honesty (and responsibility on the part of the listing agent) in the transaction. FranklyMLS is legitimate. Listing agents should treat it that way and participate.

  22. Bob

    July 9, 2008 at 8:26 pm

    Dan, my only issue is potential liability. Having seen lawsuits over golf balls, the size of a closet and numerous other “patently ridiculous” claims, it is only a matter of time before a seller sues Franklymls and a reviewing agent(s) because of statements and/or photos that the seller claims were inaccurate, misleading, etc that led to monetary damages to the seller.

    It won’t be the listing agent claiming that you had no right to publish interior photos without permission, it will be the seller and their lawyer.

    It doesn’t matter if it’s true or not because even if you mount a winning defense, you lose. Why go there at all?

  23. Barry Cunningham

    July 9, 2008 at 8:41 pm

    Paula…email me some info on your deal. If I am not able to pull the trigger I may know someone who can. What would we pay? Need to look at the deal..but I can tell you, banks run from mold remediation..absolutely run!

    We are looking at deals 30-50% of ARV…so this could fit well…let me know

  24. Ben Martin, Va Assn of REALTORS

    July 10, 2008 at 7:23 am

    Didn’t Donald Trump say you’re not truly successful unless you’re getting sued? By that measure, I’m still very unsuccessful, and my in-laws remind me of that all the time *rimshot!*

    Doesn’t anyone remember the recent Craigslist ruling where the court found that publishers of user generated content could not be held liable for unlawful postings made by its users? By this yardstick, FranklyMLS should be able to get a lawsuit thrown out. For the agents who make the comments, well, that’s another story… Ask Lucas Lechuga.

    But remember that the truth is always a defense against libel or slander. And remember that couching your comments as an opinion also gives you some protection.

    Kudos to Frank for pushing the envelope. Glad to have him as a VAR member!

  25. Tony Arko

    July 10, 2008 at 8:13 am

    Anyone can sue anyone else for any reason they want. Hiding behind that leads to complacency and allows lawyers to control us and what we do. But some people like Frank are not afraid of litigation. Some people are willing to stick their necks out for the good of others and the good of our industry. When they see a problem with the current business model (listings being shown only from one slanted point of view) and they develop a solution that fits within the rules created, we should embrace that solution, not discount it as potentially litigous.

  26. Daniel Rothamel, The Real Estate Zebra

    July 10, 2008 at 9:08 am

    I’m pretty sure that Frank has had lengthy discussions with some pretty prominent real estate lawyers in Virginia to make sure that his site isn’t doing anything illegal. Is that going to stop someone from suing? Maybe not, but it will protect him if it happens.

    That being said, “you might get sued” isn’t necessarily a compelling reason not to do something, especially when it is something that has a tremendous potential benefit. In this case, the benefit is to the consumer. I realize that doing things that benefit consumers is, far too often, very controversial in our industry.

    Someone brought up the issue of suing based on monetary damages that could arise from comments on the site. Good luck proving that one. I’m pretty sure that, in Virginia, in order for a seller to sue for monetary damages when a buyer has defaulted, they must have a contract first, and then a successful closing for a lesser amount in order to prove any damages. I would imagine that a similar scenario would hold true in this case as well.

    The best defense against law suits is ALWAYS truth. Now, sellers might not like hearing truth, but that doesn’t mean that it shouldn’t be spoken.

  27. Tchaka

    July 10, 2008 at 10:20 pm

    @Ben – In my opinion, the suit against Lucas Lechuga was frivolous. He commented that he thought the developer in question had gone BK sometime in the 80s. The developer turned around and claimed that that statement hurt his project because a number of people were trying to get out of their contracts. I don’t know if indeed his statement had any effect (unless each prospective buyer is interviewed I don’t think we can know), what I do know is that it is much more plausible that people are getting out because the Miami condo market tanked over the past two years. Most developers are facing the same problem this one is, people are walking away from contracts and deposits, suing to get out, having problems getting financing given the tighter guidelines and so forth. Donald Trump has many projects that people invest in, he went BK. So what? That happens to businesses. I wouldn’t base a purchase on whether or not someone went BK 20 years ago and I don’t think most other people would either.

    @Tony – I wouldn’t say that Frankly “isn’t afraid of litigation” as much as I would say “Frank is not afraid to push the envelope and think outside the box”. But I agree with all you’ve written.

    @Daniel – Your 2nd paragraph is an excellent assessment, I couldn’t have written it better. Thank you!

  28. Ben Martin, Va Assn of REALTORS

    July 11, 2008 at 1:35 pm

    Tchaka, the lawsuit may be frivolous, but I’d guess it’s no frivolous matter for Lechuga. I’ll bet he isn’t getting much sleep these days with the prospect of a $25 million judgment hanging over his head. Just be careful of the comments you leave in FranklyMLS, that’s all I’m saying.

Leave a Reply

Your email address will not be published. Required fields are marked *


American Genius
news neatly in your inbox

Subscribe to our mailing list for news sent straight to your email inbox.




The American Genius is a strong news voice in the entrepreneur and tech world, offering meaningful, concise insight into emerging technologies, the digital economy, best practices, and a shifting business culture. We refuse to publish fluff, and our readers rely on us for inspiring action. Copyright © 2005-2022, The American Genius, LLC.