A member listed a house in “mint condition,” but to the seller’s surprise, the buyer’s inspector found roof problems. The result: A “busybody” agent not involved in the transaction filed an ethics complaint. Can he do that? Does she need a lawyer? Could her license be revoked?
ORLANDO, Fla. – Dear Anne: Today I received the shock of my life – I’ve been named a respondent in an ethics complaint – but I am INNOCENT!
When I advertised my listing located at 512 Adams Street, I promoted it as being in mint condition – because it was. When I visited the seller to conduct my listing interview, the property was picture perfect and turnkey.
However, the roof had damage, and even the seller didn’t know that until the buyer’s home inspector discovered it. There were no outward signs of damage to the untrained eye – no leaks, nothing. If my seller had known about it, he would have hired a roofer to make the repairs before the property was listed. I mean he would have hired a roofer even if he wasn’t selling the home. He’s meticulous, so why would I doubt him when he told me his property was in perfect order?
I’ve been in this business long enough to recognize the difference between a sincere homeowner and an insincere one.
The so-called complainant has nothing to do with this transaction. The agent who filed it is lucky if he sells property once a year because he’s too busy poking his nose into everyone’s business. In this case, he found about the problem because the local home inspector happens to be his brother – who could ask for a better combination?
Can he file an ethics complaint against me when he had nothing do with the transaction? I’ve never gone before a hearing tribunal before and am terrified. Do I need a lawyer? I can’t provide for my family if my license is revoked.
Can I file a complaint against him for filing a frivolous complaint? From what I understand, he refused to participate in the association’s ombudsman program. Signed, Innocent, innocent, innocent
Dear Innocent, innocent, innocent: RELAX! But you do need to watch what you say about the complainant. If what you’re saying is nothing but bluster and blow, you could end up with Article 15 added to the complaint against you.
Hypothetically, let’s say you’re found in violation of the Code of Ethics. If that happens, your association’s Board of Directors must ratify the ethics tribunal’s decision before it becomes final. Only final ethics decisions involving violations of the public trust (fraud or discrimination against a member of a protected class in connection with a real estate activity) can be forwarded to the regulatory body. Otherwise, the decision stays neatly and confidentially in your member file.
Your local association of Realtors® has no authority whatsoever to suspend or revoke your license. They’re not a regulatory agency – they’re a professional trade organization that disciplines its own. In fact, you granted them that authority. It’s in the membership application you signed, under the part where you agreed to abide by the Code of Ethics and be subject to disciplinary action.
Anyone – consumer or member – may file an ethics complaint if they believe that a Realtor violated the Code of Ethics, even if they’re not involved in the transaction or event when the alleged act occurred. This includes your busybody colleague.
Think twice before filing an ethics complaint against the complainant. While you believe his complaint is frivolous, the allegations alone prompted the association’s Grievance Committee to forward the complaint for a hearing. That decision is based on the paperwork in front of them – nothing more.
Important to understand: The Grievance Committee isn’t judging whether “the facts” in the complaint are actually true. The Grievance Committee’s sole purpose reviewing ethics complaints is to determine if the allegations in the complaints warrant a hearing. They operate on the premise that if the facts alleged in the complaint – and the emphasis is on “alleged” – were taken as true at face value, is it a possible violation of the of the Code of Ethics?
They will not contact you with questions nor seek a response. The Grievance Committee can only request a response in rare circumstances; and when they do, it’s because the complainant could not provide them with information they need to render a knowledgeable decision. Why? Because the National Association of Realtors® (NAR) put a policy safeguard in place to prevent Grievance Committees from rendering decisions on guilt or innocence without the benefit of a full due-process hearing. This is why you were not asked to respond until after the complaint was forwarded to hearing.
From what you describe, the complaint probably alleges that you violated obligations under Article 12 of the Code of Ethics – an obligation to be honest and truthful in all of your real estate communications, and present a true picture in your advertising, marketing and other representations.
NAR’s professional standards enforcement process comes with built-in protections for both sides during the proceedings. We call this due process.
Your due process rights as a respondent include:
- Knowing in advance the allegations against you
- Time to gather evidence and witnesses
- A chance to tell your side of the story
- Permission to present witnesses on your behalf
- The right to be represented by legal counsel/Realtor counsel
- The ability to ask the complainant questions (and vice versa)
The hearing panel bases its decision on a standard of proof. In ethics, this is defined as that measure or degree of proof which will produce a firm belief or conviction as to the allegations sought to be established.
The complainant may sincerely believe you knew the roof was damaged when you advertised the property in “mint condition.” But it’s a shame your busybody colleague refused to participate in the association’s ombudsman program. More than likely, all of this could have been cleared up with one telephone call.
The ombudsman program is a telephonic mediation whereby an association’s designated representative talks to both sides of the issue separately to resolve the issue, but it takes both sides to make it happen.
One final tidbit: This is not the end of the world. Go in prepared and tell the truth.
Anne Cockayne is Director of Local Association Services for Florida Realtors
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