” You have the right to remain silent.  Anything you say can and will be used against you in a court of law…” 

When I read blogs this is what goes through my mind, Miranda rights.  Since blogging became popular in 2004, there have been 159 civil and criminal court actions involving bloggers.  Seven of these have resulted in penalties totaling more than $18 million.  What is amazing is that it’s not just the blogger’s articles that are facing scrutiny, but the comments left on blogs are getting blog authors in trouble.  So, where should real estate bloggers draw the line?  Where does the right to free speech end and the fear of litigation begin? 

Questions have been raised recently as to who is responsible for educating bloggers on their risks and limiting their risks. Some insurance companies have come out with Blogger Insurance that works similarly to insurance offered to newspapers.  But, in leiu of not being able to afford insurance, it will cost upwards of a few hundred dollars for a minimum coverage policy, there are a few rules you can remember as you sit down to write your next blog.

1.  Do not plagarize someone else’s work.  Copyright laws do apply to blogs.  Whether it is a newspaper article or another blogger’s blog, you need to give credit where credit is due.   

2.  Think Fair Housing!  I can not tell you how many blogs I have read from real estate agents that violate Fair Housing laws.  It doesn’t matter what day of the week it is or who you are talking to, Fair Housing laws apply to people who have real estate licenses all the time!  Your past blogs will be found and will be used against you to prove a history of discrimatory behavior.  This goes for your comments on other’s blogs, too.  And by the way, delete doesn’t mean it disappears forever.  There are people paid very well to find information on the internet that you deleted.  Violating Fair Housing laws is also unethical.

3.  If you are referring to a person in a defamatory way and the reader can easily find out who you are talking about, you should not publish your blog.  Defamation is a hot topic in blogger lawsuits.  This can also be an Ethics violation for REALTORS.   Article 15 - Realtors shall not knowingly or recklessly amke false or misleading statements about their competitors, their businesses, or their business practices. 

4.  Manage the comments on your blog.  Although I am an advocate for free flowing dialogue on my blogs, I will not condone blasting someone’s opinion or violating anybody’s rights.  If you do need to delete someone’s comments it is best to notify them why you did so and document that there was a need to censor a contributor. 

Of course there are many more ways to get yourself in trouble while blogging, but if you follow these 4 tips you will be steering clear of some pretty obvious lawsuits waiting to happen.  And if all else fails, just remember, you do have the right to remain silent.     

Confusion

Recently, while teaching an Ethics class, I realized that there is still a lot of confusion about the level of confidentiality in an offer to purchase. Certainly we all know that Contracts, once ratified, are confidential; but what about the Buyer’s Offer to Purchase the property? The short answer? Absent an agreement between buyer and seller, there is no requirement for the Seller or Listing Agent to keep an offer confidential. It is the property of the Seller, once delivered

How Does This Effect the REALTOR?

If I am Buyer’s Agent and call you, the Listing Agent to ask about the presence of other offers – you can tell me that there are offers pending AND any and all of the details of such offers. Surprised? So are a lot of other REALTORS. That is why the Code of Ethics have made it a requirement to disclose to the purchaser that the offer may not be confidential. Absent an agreement to keep the offer confidential, the Listing Agent, with permission from the Seller, could send copies of your offer to purchase to any buyer agents who are being encouraged to write superior offers.

In 2006, the REALTOR Code of Ethics was updated to bring clarity to this issue.

Standard of Practice 1-13

When entering into buyer/tenant agreements, Realtors must advise potential clients of:

1) Realtors company policies regarding cooperation;

2) the amount of compensation to be paid by the client

3) the potential for additional or offsetting compensation from other brokers, from the seller or landlord, or from other parties

4) any potential for the buyer/tenant representative to act as a disclosed dual agent, e.g., listing broker, sub-agent, landlords agent, etc., and

5) the possibility that sellers or sellers representatives may not treat the existence, terms, or conditions of offers as confidential unless confidentiality is required by law, regulation, or by any confidentiality agreement between the parties.

(Adopted 1/93, Renumbered 1/98, Amended 1/06)

Standard of Practice 1-15

Realtors, in response to inquiries from buyers or cooperating brokers shall, with the sellers approval, disclose the existence of offers on the property. Where disclosure is authorized, Realtors shall also disclose whether offers were obtained by the listing licensee, another licensee in the listing firm, or by a cooperating broker

(Adopted 1/03, Amended 1/06)

Note that in Standard of Practice 1–15, the REALTOR is advised that they must disclosure the other offers (with seller’s approval). The REALTOR must also tell the inquiring Buyer Agent who the author of the Offer to Purchase is. This is important to the Buyer Agent, in that a Dual Agent writing an offer; or Designated agent in the same office writing an offer may have benefits they can negotiate away to position their offer better.

Supporting Statutes?

There are currently no statues in Virginia protecting the Buyer’s Offer to Purchase in this regards. Since I am not an attorney, I asked Lem Marshall, the Legal Counsel for the Virginia Association of REALTORS where I could find something other than the Code of Ethics, to support this. Are there any statues that give me permission to release this information? Here is his answer:

I know that this adds yet one more disclosure to your daily activities, but for too long Listings Agents have been under the false thought that they must keep these offers and their existence secret. No longer. The REALTOR acting on behalf of the Seller is required to do everything in their power and within the context of real estate legislation to ensure the Seller gets the best possible offer.

It’s about Family

Last night as a storm entered into our neighborhood, I realized that at about 2:30 am it was one of the worst we had; had in awhile. I started to leave my bed, at the same time my three young daughters entered the threshold. Jennifer and I did our typical storm-ritual, we rolled out the blankets and pillows on the floor next to our bed, lit candles, said prayers thanking God for comfort and peace and made sure flashlights worked and were near-by.

As Jennifer and I nestled back in my bed I was thankful that we had been provided a place to make our children feel safe and then began to think about all the people who had no idea what tomorrow held for them, by way of housing. Yesterday I checked realtytrac.com and found that in Spotsylvania alone there were over 800 homes for sale, that were in some stage of distress, from short-sale to foreclosure. RealtyTrac estimates that one of every 200 or so homes is in foreclosure in Spotsylvania.

What about the People?

Back in December of last year I wrote about the serenity that some people found in having the burden of a home payment relieved in one fashion or another. This is not to say that I agree with individuals being allowed to walk away from the property, I don’t. However, there are many people who MUST sell right now and their home is no longer worth what they owe on it. In some cases it is because of not handling their finances well, and in other circumstances it could be the loss of work, family illness or a plethora of other issues. It seems that training for agents is ubiquitous, I know that I’ve taught more foreclosure and short sale classes that anything else. Jim Rake and I have just completed the Certified ShortSale Professional class and look forward to teaching it in the future, but these classes teach contracts forms, the need to protect commissions and typically protecting buyers. Not one of the courses talk about the people who are suffering through this market crises. We spend far too little time talking about the fear and embarrassment that families suffer when their home is foreclosed upon or to have to reveal to strangers that they cannot pay for their home and must sell.  We fail to address how humbling it must be to ask for benevolence from all involved with cut commissions, inherent delays and uncaring loss mitigation officers.

Agents who Care

More and more I hear agents telling me that they are talking their buyers out of looking at what appears to be distressed homes or those in short-sale. I get it, I really do. The majority of agents listing such properties aren’t properly prepared to do so. Sellers and agents have not priced a lot of these homes at a level that a lender would accept and have not started the process with the Seller in a timely enough manner to get to closing in a reasonable amount of time. HOWEVER, education is helping in these areas, lenders are starting (ever so slowly) to put better people and procedures in place to help with these clients.

My real issue is that all the bravado and gimcrack in the industry, in relation to what an agent chooses to show and not to show “their clients” is hurting many people. Only with the expressed permission of the buyer can an agent decline to show property that otherwise matches what the buyer desires. Yes, I know that it’s harder and you get paid less, but those will be the most loyal clients in the future. It’s hard for everyone right now and all we can do is pray that we will all have wisdom to overcome this in the near future. By looking at the current trends, it seems that there is some improving in the market, but with the large inventory of homes on the market; we’ve got a ways to go.