Another protected group?

Ines I have to ask, don’t take offense, why didn’t you have the new listing in the same day that the old one canceled out? Whenever I have moved offices the new listing is signed and in the computer saved as a draft before the old one gets canceled.

As for marking it in the MLS or any other option it would not have stopped what is obviously a predatory type of person. This agent would not have cared what flag you put on the canceled listing, that is obvious by the way they are handling everything.

Just a thought…A quick call to your local reporter that enjoys investigative reporting will end this. The local news running a story showing how the agent has taken advantage of this person and their unwillingness to cancel the contract due to greed would take care of this issue really quick.

Each time I have left offices all listings went with me, part of negotiations when I agreed to hand my license with each office. I also took the time to sit down with the broker when leaving and get it in writing that I could get all listing paperwork in order before we canceled out the old contract. Brokers in general can’t afford to piss off agents that produce (or any agent for that matter) so they are willing to accommodate you if you haven’t burned any bridges. Not that this helps you this time, but hopefully it will help someone else down the road.

This is just appalling to me, and how does the predatory agent sleep at night. This is very upsetting and I guess this is the reason RE agents rank up there with used car sales persons.

I would think that if the family has power of attorney, anything “Mary” signed- could and should be contested and anything that Mary signed would not be valid as to her condition. I work with many of my Mom’s friends who are elderly and only have their well being in mind, not just because they are my Mom’s friends, but I also have a great respect for the elderly and my Grandmother died from Alzheimer’s, and have seen first hand the effects of this disease.

Ines- here in AZ, at my current broker, we have a legal hot line- do you have such a resource? If so, I would contact them immediately to see how you can help this family. I would also advise the family to contact a real estate attorney.

Best of luck to you.

Lani I really don’t think there is a good answer here. The situation is to rare and each case will be unique so how do you create a policy to handle it? Doubt that you can.

I often work with folks that are “downsizing”. Most are early retirement age and have few ailments. But occasionally I have a client with some sort of ailment or disability and I’m always very sensitive with showing instructions. I am often apalled at how careless other agents can be when trying to show the property, despite the most direct showing instructions. I’ve had more than one retired seller call me, very shaken and upset by a pushy agent trying to push their way through the door without proper notice. I’ve even complained about an especially rude agent who tried to show after it went pending, but there was really no consequence. I feel that we really don’t do enough to protect the elderly, and it’s something NAR really needs to address via training and literature.

Ines:

Some of the information about the contracts here is unclear to me. As I read the post and your comments, it seems that the listing was cancelled, and a new contract had not yet been entered into with the new brokerage. In another it seems that the first listing with your old broker was not cancelled, but an agreement was signed by your old broker assigning the listing to your new company. The key to whether there might be a violation under the Code of Ethics is whether or not the contract with your CB brokerage was terminated or assigned, or released specifically to your new firm (in which case the original contract is still in play) – And I make all of these statements subject to the contract law in your state which would determine the obligations of the parties.

If the second situation is the case, and the clients would be obligated to pay more then one commission under the terms of the contract(s), then there may be a basis to make a complaint to the local Association under the Code of Ethics.

In that circumstance a complaint might be framed under Article 1 of the Code which states , “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 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)”

By not determining if their client was still obligated under the previous contract (removal from the MLS notwithstanding) then the complaint might suggest that the second agent did not put the client’s interest before their own by obligating them under two contracts.

In addition, if that is the case, a complaint against the agent might also be made under Article 16 of the Code which states; “REALTORS® shall not engage in any practice or take any action inconsistent with exclusive representation or exclusive brokerage relationship agreements that other REALTORS® have with clients. (Amended 1/04)”

This potential violation would be exemplified by Standard of Practice 16-9 which states “REALTORS®, prior to entering into a representation agreement, have an affirmative obligation to make reasonable efforts to determine whether the prospect is subject to a current, valid exclusive agreement to provide the same type of real estate service. (Amended 1/04)”

And the potential violation would be further exemplified by Standard of Practice 16-14 which states “REALTORS® are free to enter into contractual relationships or to negotiate with sellers/ landlords, buyers/tenants or others who are not subject to an exclusive agreement but shall not knowingly obligate them to pay more than one commission except with their informed consent. (Amended 1/98)”

If the listing was assigned to your new brokerage, your actions are validated by Article 16 as exemplified by Standard of Practice 16-20 which states ”REALTORS®, prior to or after terminating their relationship with their current firm, shall not induce clients of their current firm to cancel exclusive contractual agreements between the client and that firm. This does not preclude REALTORS® (principals) from establishing agreements with their associated licensees governing assignability of exclusive agreements. (Adopted 1/98)”

The key to the making this complaint effectively is whether or not their contract was in place with the first (CB) brokerage at the time the other agent obligated this poor woman to the second contract. – Even if the CB brokerage had agreed to release the listing to the second brokerage, that might not invalidate the first contract. Again, this would all be subject to contract law in your state, which I am unfamiliar with.

I also hasten to point out that my suppositions about the potential violations of the COE are based upon the limited information gleaned from this post and comments on the post, are my opinions as an individual, and have no substance or authority beyond my opinion as a private practitioner in another state.

I also agree with Russell, that in addition to a COE complaint (if such is warranted) a strong attorney letter from the client’s family, mioght be in order here.

Ines – I read this “We were asked to communicate every aspect of the transaction to the family who also had power of attorney.” Jamie mentioned an option and Russell made a point of an attorney’s letter to the broker. If you have an attorney friend, you might be able to get a letter written to the broker as Russell stated and pointing out that she does not have the power to sign a listing contract, if that is the fact. There is common law, which does address mental capacity. Asking for a statement of the lady’s diagnosis by the other broker could in fact be a violation of HIPPA guidelines.

I feel terrible for this family and having to do through this.

Michelle – lockboxes in Miami are a sensitive subject. Rick and I very rarely use them, and it’s usually with a fixer upper that is empty and even then we prefer showing the property. I was recently referred to a buyer here in Miami who told me that she had worked with 3 different Realtors in a period of 5-6 months and had not once seen a property with them, instead was given the lockbox combination and went unaccompanied. (imagine if this were to happen to Mary?)

Electronic lockboxes are not used – and houses are burglarized even with electronic lockboxes….it’s a problem I don’t think can be addressed….and it shows how irresponsible a lockbox would be for this particular case.

Ines – Wow. I’m sitting here in disbelief. Regardless of the legal ins and outs I just keep thinking that this is a disgusting abuse of a license by the other real estate agent. Legal or not, etheical or not – its just plain wrong. I definitely liked the suggestion of going to the local news as someone like that should be spotlighted for what they truly are. I will be keeping an eye on this, as I hope it all works out for you.

It makes me mad that people try to do what’s right sometimes, only to be overshadowed by the people who don’t care.

“The agent was furious at the implication that Mary would be “sick” since she seemed perfectly fine.”

Wow, so this agent has a real estate license AND a medical degree. That’s pretty impressive.

There’s a standard that is a whole lot higher than the Realtor Code of Ethics. It’s called the “Human Being Code of Ethics”. Did this guy violate Article this and that of the COE? I don’t know. But he clearly violated the unwritten laws of being a decent person and doing the right thing. Hope he feels good about his actions and sleeps soundly. Sadly, he probably sees nothing wrong with what he has done.

In my opinion, this guy is a putz and a disgrace. And his broker isn’t very far behind him in the “I’m a turd” line.

Personally, I wouldn’t worry about the Realtor’s code of ethics and would contact the Seller. What’s going to happen? A slap on the wrist? A big fight over the commission? Who cares? What is the ultimate penalty for contacting another agent’s seller? I would risk it. Some things are too important.

Ines,
This is a very personal issue with me as my mother is in the early stages of dementia. To an outsider she may appear “fine” at a first meeting but her family and doctor know differently. The other agent is pond scum if after being told by the family of the owner’s problems he is still refusing to co-operate with their requests.

We are going to see situations like this more frequently. We have an increasing number of seniors with issues that are not “visible” and a hoard of unscrupulous people who will take advantage of them.

Ines – I think we can do exactly what you’re doing…care. Sure, its not going to stop everyone, but with enough people thinking and doing the right thing, there will be less people doing and thinking the wrong thing (think of it as watering down a drink…the more water you add, the less it is the original drink and therefore the more pure water it becomes. You’ll never make it 100% water, but you can eliminate most of the original liquid through dilution). I’m a firm believer that if the good percentage outweighs the bad percentage then (for the most part) things will fall into place. You will never stop all of the people in this world from doing what they do, but in time with enough eyes and ears looking for these sorts of things, more people can be saved from becoming victims of this sort of thing.

Legality, code of ethics, it doesn’t matter. We shouldn’t have to look up a rule or definition to abide by standards of human decency. Despite some sharks, there are fortunately a lot of caring agents in our profession who do truly look out for their clients. Hopefully, we can continue to educate consumers and aide them in making wise choices and eventually the sharks will be put out of business.

I was about to say what Matt said in that have the family use their POA to cancel the listing. It’s better to cancel the listing and deal with any “termination fees” than drag this out any longer. Judge’s don’t tend to hold people in esteem who take advantage of those with disabilities.

In Oregon we can sign a new listing agreement with someone under another contract that starts after the expiration date of another one. So if a seller is unhappy with an agent they can execute a new contract to start immediately after the other one ends. The new contract can be signed and executed for services to start at a future date. It doesn’t have to be the date that the contract was signed. That is how most “transfers” are handled here. That way there is no break in service.

I have seen a couple of times on the MLS, do not solicit for various reasons.

I’ve never had an elderly client with Altzheimers, but when possible, I insist that a trusted friend or family member be present for contracts. It reduces their anxiety and many elderly folks haven’t sold a home for 40 years and really need to know that someone is watching their back.

I’ve had completely with it elderly folks in their 90’s as clients, and I asked their children to execute a POA for ease of the transaction.

Personally I am floored that the broker wouldn’t release the contract. Somehow, I feel that FL is going to lose another agent fairly soon. Our investigations seem to take about 6 months out here from the real estate board.

Ines ; You mention;”The listing was released to the new brokerage on paper and signed by both brokers but was then canceled in the MLS.

The MLS, as far as I understand in Florida, is used as a contract – but which superseeds, the written release or the canceled MLS?”

Your contract supercedes the MLS completely as it is a contract between the parties. I would right a really strong letter to the broker (please feel free to use the earlier comment to explain to them the ethics violation they face), in which you explain to them that if they do not immediately release the property, you will a) file with the Association (and the 180 days doesn’t start until you are aware of the issue so I’m pretty sure there isn;t a problem there – and is measured to the date you file anyway) and that b) Your client will at the same time hire an attorney (who will sue them for obligating their client to pay more then one commission) and c) file a complaint with your real estate licensing authority. Your letter might also point out that they may not be able to enter into an enforceable contract since a POA has been given, and the client has a medical diagnosis which might lead a cout to doubt her competency to enter into a contract.

In my experience, with all due respect to Matt,a strong letter with a actual detailed explanation of the negative actions being taken is often enough to jolt the other party out of their actions.Once it is clear that you know what you are doing, have put in writing your detailed intentions to do so within 24 hours, and have explained that they will be facing actions on at least three fronts, the bad guys may just decide to do the right thing. Having had similar situations where other companies have acted poorly as these have, I gotta tell you this works.

If you need help Dm me on twitter – I have two meetings today, but I do write a hell of a letter if you need one! 🙂

Ines: When you have the listing clear of controversy, please let us know who, so that the long tail of Google can wag that slimy broker.

Glad it worked out. That had to be very stressful for your clients and yourself.

It’s not quite over yet – the listing was canceled on the MLS but the owner has not yet received a written cancellation. All the new listing papers are signed, new sign in front of property, lockbox removed, locks changed – what a relief
(but Mary never received a copy of the listing agreement, so the written cancellation is a must to prevent any other problems)

Steven – Rick and I didn’t want anything signed as not to violate the COE…and honestly, we didn’t know the listing would be released so quickly. Although it took the other brokerage a letter from an attorney to cancel it, the good news is that the property is under contract now and Mary is happy to be able to move ahead with her plans