ETHICS

May buyer’s rep contact a seller?

After making every reasonable effort to contact a listing agent and getting no response, does a buyer’s agent have the right to contact a seller to schedule a showing?

Does the MLS rule override Article 16, Standard of Practice 16-13, which states that “all dealings on listed property shall be carried on with the listing agent”?

There’s nothing more frustrating than being unable to find the listing agent to present an offer. Here are the issues to consider.

Article 16, as construed by Standard of Practice 16-13, forbids dealings with another broker’s client except with the consent of the other broker. By joining an MLS and agreeing to its rules, listing brokers do consent to having their clients contacted by other participants, provided those participants make reasonable efforts to first contact the listing brokers.

Some listing brokers also give specific consent on the MLS property data form for participants to contact the seller to set up appointments to show the property.

If listing brokers, as is their right, override the general consent given through the MLS rules to contact the seller, they must specifically state in the remarks section of the MLS property data form that there shall be no contact with the seller for any reason.

If you’ve been unable to contact a listing agent after trying repeatedly to do so, check to be sure there isn’t any specific prohibition in the remarks section of the MLS before you contact the seller to schedule a showing.

Keep in mind, however, that the listing agent may still charge you with a violation of Article 16, so be sure you’ve made every reasonable effort, including trying to get to the agent through the broker.

As this situation demonstrates, salespeople need to have a sound understanding of the Code of Ethics and MLS rules.

To view NAR’s Code of Ethics and MLS policy, go to www.onerealtorplace.com/mempolweb.nsf.

Let’s say a listing agent has given the sellers he’s working for a comparative market analysis showing that the fair market value of their house is approximately $64,000, yet the sellers choose to list their home at $67,500. They really need the extra money and are willing to clean it up and make sure it looks better than average.

The agent is also working with some buyers. After seeing several other comparably priced houses, the buyers are very interested in the sellers’ home. In fairness to the buyers, the listing agent feels he should show them the CMA on the sellers’ house. Would that be unethical?

Yes. Article 1 says REALTORSŪ must “protect and promote the interests of their client.” When sales associates take listings, they generally become agents of the sellers and agree to promote the sellers’ property at the listed price, regardless of what the CMA shows. To do otherwise would violate the terms of the listing agreement and could give the sellers cause to claim a breach of the agent’s fiduciary duties to them.

I respect and agree with the listing agent’s concern in this case that the buyers receive enough information to make an informed decision about buying in the area. The buyers need to be given information about a variety of homes in their price range in several areas to be sure they make an informed choice. But what the listing agent may not do is provide them with the CMA he prepared, because that analysis of the comparables was done exclusively for his sellers.

Bassett is a consultant, facilitator, trainer, coach, frequent speaker on ethics, and member of the NAR Professional Standards Committee. She heads Bassett Consulting, Albuquerque, N.M., specializing in real estate business planning.