ethics in todays world3

8/3/2019 Ethics in Todays World3

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Know the Code:

Real Estate EthicsBy Doris Barrell, GRE, DREI

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T: (908) 415-6138 400 West Main Street, Freehold, NJ07728

www.mulroyschoolofrealestate.com
http://www.mulroyschoolofrealestate.com/http://www.mulroyschoolofrealestate.com/


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ETHICS IN TODAYS WORLD

Ethics: Doing What is Right This text will prepare you for future ethical dilemmas. Real integrity is doing the right thing, knowing that no ones going to know

whether you did or not. Oprah Winfrey

Ethics, Morality & the Law Ethics vs. Morals

Ethics are rules set down by man / Morals come from a higher being.

Right vs. Wrong / Good vs. Bad Situational Ethics behavior determined by circumstances.

Albert Schweitzer Reverence for life the name we give for ourconcern for good behavior. Ethics vs. Law Law draws a firm black and white line between right and

wrong. Ethics tend to come in shades of gray.

Stealing is wrong. Stealing a loaf of bread to feed family is: ethical dilemma.

Does a sense of ethics or morality come naturally? Must it be learned? Mark Twain: Morals are acquired no one is born with them.

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Ethics and the Boardroom: The American public is highly suspiciousof big business Enron, WorldCom, etc. (N.J. Politicians)

Corporate Scandals: Where do the Wall Street fines go? Case Study #1 The mighty have fallen

Should family members be personally responsible for corporate debt? What responsibility does the auditor have? Who else should share the responsibility? Why is Mr. X still loved by town?

Corporate Code of Ethics: Guidelines for ethical business operations Laws: LIC disclosure cis, lead paint, environmental issues Rules and Procedures: Escrows mls lockboxes client representation policy

manual Values and Conscience: Come from Broker (giving listing fee to expired broker) Promises: underpromise and over deliver Heroes: Are you a hero to your client? Who do you respect?

Professional Associations & Companies: Does your company want tofollow these guidelines or is the marketplace a place set apart wherewe may deceive one another There are seven professional organizations on page 6 including NAR Ethics & the Classroom

Mark Twain, it is noble to be good nobler to teach others to be good. Every salespersonshould take this course.

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Case Study # 2The duo of deceit, everybody does it. Dont letsuccess inflate your ego.

Does wealth lead to unethical behavior?

Are students more or less apt to listen to felons?

Why were the couple convicted? (fraud tax evasion)

Does John Qs teaching imply forgiveness or condoning bad behavior?

Cheating: Have you ever downloaded information for a termpaper?

Passing a student because parents are contributors?

Ethics and the locker room Steroids

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Case Study # 3 Is winning everything?

If a school is going bankrupt -- should it lower its academicstandards?

Would it be right for the broker to provide laptop PDAs

cameras cell phones for new agents? Would other agents have the right to complain?

Will everyone benefit?

What would be a better way to achieve results?

Outlook: a published code of ethics is a good start reading about ethics will not make you do the right thing.

Conclusion: time devoted to honest discussion of ethicalprincipals can make a difference mandating continuingeducation will help.

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ETHICS AND THE REAL ESTATE PROFESSIONAL

Realtors come from other fields: business world (ATT/Lucent),teachers, nurses, retirees, sales. Lessons learned from pastexperience will be carried into real estate.

The Need for Ethical Behavior Your home is your greatest financial asset Code of standards is required broker appraiser lender

closing agent because it represents the hopes and dreams of abetter way of life and status in the community

Professional Associations National Association of Realtors Code of Ethics

Appraisal Institute Code of Professional Ethics & Standards ofProfessional Appraisal Practice Mortgage Brokers Association Canons of Ethics Primary goal of these associations is to increase publics

awareness of the values and integrity that can be expected fromdealing with these professionals.

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State Regulations A real estate license is required in all 50 states and Canada Membership in state and national associations is voluntary. However,

once a member mandate is required (in most states) to take 2.5 hoursof ethics training.

Arello: association of real estate license law officials promotesuniform standards for administering and enforcing state license laws including ethics.

Customer & Client Relationships National Association of Realtors formed in 1908 first code: 1913.

1924 pledging to subscribe to the code became requirement ofmembership. Applied to approximately 1,000,000 members today.

The code makes who do you represent very clear. Late 1980slegislation required disclosure of agency.

1990s buyer agency became lawclient/customer. Do you know thedifference?

Payment of commission can be buyer, seller, LL, tenant, but not both ina dual agency

Conflicts of Interest (Dual Agency) 7


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Agency Issues for Residential Agents Client = agency relationship. Must be in writing to be enforced. Other

party is customer.

The Agreement List & B.A. contracts are an agreement between a broker and client

(buyer-seller-LL-tenant) Conflicts may arise when two agents from same office have offers on a

company listing Designated Agent: when selling a company listing one agent

represents buyer / one represents seller broker = dual

Dual Agent: Sell your own listing: limited dual / or sell a companylisting.

Disclosure Understanding Ethical Dilemmas through Case Studies

Part 1: residential agents Case Study #1 multiple clients

Should you call (follow-up) with an interested client when you have an offer on aproperty you have showed to her?

For discussion: 1-6, page 168


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Case Study #2 For sale by owner

Should we make clear who is going to pay our commission?

Case Study #3 Selling your own listing

When selling your own listing should you always be a dual agent?

Case Study #4Megans Law

Should we reveal what we know even if it will jeopardize our clientsinterests?

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Other real estate specialties

Commercial Real Estate Agents SIOR Society of Industrial & Office Realtors

CCIM Certified Commercial Investment Member

CRE Counselors of Real Estate

RLI Realtors Land Institute

IREM Institute of Real Estate Management

Code of Professional Ethics of CPM

Code of Professional Ethics of Accredited Management Organization

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Case Study #5 How much must I say?

Whose interest comes first?

Property Managers and Leasing Agents

Property managers who negotiate leases and receive commissions

must be licensed

In multiple leases financial qualifications come first

Everyonesgreen

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Case Study #6 The get-out-of-lease card

Whose interest is served if you let her out of the lease?

Case Study #7 Illegal or unethical? Or both?

Can you tie a lease to a buy arrangement? Real Estate Appraisers

Society of Real Estate Appraisers & American Institute ofReal Estate Appraisers share a common goal to elevate

the profession by establishing high standards by makingbusiness practice and ethics a required course incontinuing education carried out by appraisal institute inan area where they are doing an appraisal cannotappraise your own listing. value check. Realtors who are

also appraisers should not list property they have preparedan a raisal for.

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Case Study #8 Is it worth it? Should we be totally objective? Home inspectors The American Society of Home Inspectors (ASH) has its own code of

ethics

Be careful recommend three Case Study #9 Take it or leave it

This is a dilemma Settlement Agents neutralperson Title must reveal their interest

Lenders The Mortgage Bankers Association and the American Association of

Mortgage Brokers have a code of ethics RESPA / Reg Z (Apr)

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Case Study #10 Up to the limit If you are starting out should you maximize the loan to reach the

full potential of future growth?

Global Real Estate Practitioners In Norway the Supreme Court ruled that anti-discrimination laws do

not cover real estate agents who sell private property.

Conclusion Ethics is recognized by state regulators and professional

organizations.

Many ethical dilemmas revolve around agency and the responsibilityof the agent to clients and customers.

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NATIONAL ASSOCIATION OF REALTORS CODE OF ETHICS

Introduction: 2.5 mandatory hours how many of you haveviewed the DVD?

From the beginning: 1913 1st code mandatory 1924 Underall is the land, page 74 A living document: edited every year (NAR Professional

Standards Committee), (SOP) Standards of Practice createdto clarify intent of article

NAR strongly encourages mediation in lieu of arbitration Required ethics training (every article is designed to better

serve the public - members of local/state/national NAR must

take 2.5 hours of ethics every four years. Available online final exam 75% Enforcement of Code: local level: hearing panels of

Professional Standards Committee guidelines: NAR code ofethics and arbitration manual (NAR)

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The NAR Code of Ethics Original (1913) code contained 22 articles. 1970s 5 articles

moved to preamble. 17 were grouped into 3 categories (1) dutiesto clients & customers (2) duties to public (3) duties to realtors

The Preamble: model for professional behavior (read page 74)

Realtors are challenged to: Maintain and improve standards of their calling Share responsibility for integrity and honor Strive to remain informed on issues affecting real estate Share experience and study with others Assist regulatory bodies to eliminate practices that damage public or

discredit or dishonor the profession Inform board or association of conduct involving misappropriation of

funds or property discrimination fraud. Urge exclusive representation of clients Avoid attempting to gain unfair advantage over competitors Refrain from making unsolicited comments about other practitioners Offer objective opinions not influenced by personal motivation or gain

Follow the Golden Rule 16


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Duties to Clients/Customers (article 1-9)

Article 1: protecting the client / treat all parties honestly SOP 1-2

Client: agency relationship or legal non-agency Customer: non-contractual relationship Agent: license (s.p. broker) Other SOP: prohibit misleading owner regarding market value or buyers

as to perceived benefits if using a specific realtor How long realtor must continue to present offers (closing), unless seller

objects How long info must remain confidential / continues after termination of

agency latent defect is not confidential info 1-10 manage property with due regard for rights safety and health of

tenants 1-11 protect against foreseeable contingencies and losses 1-12 listing: advise LL or seller: com splits (2.5/2.5) Buyer agent represents buyer not seller Disclosed dual agency conflict or interest 1-13 appraisers fees shall not be based upon amount of value

1-15 disclose offers with sellers approval and if offer is in list office. 17



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Article 2 disclosure avoid exaggeration misrepresentationor concealment of pertinent facts. We are not obligated todiscover latent defects.

Article 3 cooperation Realtors shall cooperate with other brokers except when cooperation is

not in clients best interest. (multiple offers) Cooperation does not include obligation to share commission. 3-1 cooperating broker shall ascertain compensation before acceptance

of offer to cooperate. 3-2 changes in cooperation shall be communicated prior to offer 3-3 broker can agree to change compensation 3-4 disclosure of different splits affirmativeobligation 3-5 licensees are obligated to disclose all pertinent facts 3-6 List broker shall disclose existence of accepted offers including

offers with unresolved contingencies 3-7 realtors shall disclose status and personal interest 3-8 realtors shall not misrepresent availability or access to show or

inspect a listed property

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Article 4 & 5 personal interest / buy or sell Article 6 No Kickbacks

No commission rebate profit may be accepted withoutclients knowledge and consent (respa) service must berendered referred (mort) home warranty. 1 stop brokerage.

Articles 7 & 8 Commissions & Escrow (7) informed written consent (disclosure) for dual

compensation (8) trust account must be separated from business account

Article 9 get it in writing /if its not in writing it doesntcount Extensions on mortgage commitment list agreement copies

to client immediately. SOP 9-1 Written extensions

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Duties to the Public (articles 10-14) Article 10: discrimination equal opportunity in

housing Reiterates fed state and local laws: race, color, religion,

nationality or gender handicap familial status marital

status Fed laws do not apply to commercial state law applies to

all real estate SOP 10-1 realtors shall not volunteer information

regarding race / religion

Ethnic composition of any neighborhood engage in panicselling 10-2 demographic info is ok 10-31 cannot advertise preference or limitations no

Irish

10-4 applies to employees & independent contractors 20



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Article 11: area of expertise: dont try to handle propertiesbeyond your expertise (shopping center) SOP 11-1 sets info details for buyers & sellers re: value 11-2 sets fiduciary obligations 11-3 fee not a commission for consultation (objective) 11-4 competency is required

Article 12: advertising: true picture in ads SOP 12-1 May use free 12-2 free to buyers when compensation comes from seller SOP 12-3 It is not unethical to offer free services however it is against

license law to make free offering contingent on list or purchase. 12-4 cannot adv property without authority

Cannot quote a different price in an add 12/5 name of firm should be in ad 12/6 ownership interest in unlisted property advertised must mention ad

you are a realtor /licensed 12/7 List broker should agree to let sell broker (under contract) sign on

property.

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Article 13: Dont practice law recommend legalcounsel when necessary

Article 14: code enforcement Realtors are obligated to cooperate with board or association when

charged with unethical practice

SOP 14-1 can only be subject to disciplinary proceeding in 1 boardfor same offense

14-2 shall not make unauthorized disclosure of findings 14-3 shall not obstruct proceedings by instituting or threatening to

institute actions for libel-slander etc 14-4 shall not file multiplecomplaints for the same event

Article 15: competitors do not make false ormisleading statements about competitors SOP 15-1 Shall not file false or unfounded ethics complaints

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Article 16 representation Shall not engage in any practice or take any action inconsistent with

exclusive representation or exclusive brokerage relationshipagreements that other realtors have with clients.

SOP 16-1 not intended to prohibit ethical innovative business practices 16-2 general announcements tel marketing mailing etc ok 16-3 calling another brokers client to offer different services (prop

manager) is ok 16-4 cannot solicit a listed property however if list broker does not

reveal ex. date or type of listing it is ok to call seller. 16-5 ditto for buyer agency

16-6 realtor who did not initiate call may discuss listing 16-7 realtors can prospect for future business 16-8 realtors can prospect expired listings 16-9 realtors should make sure buyer/seller does not have obligation on

a prior agency 16-10 disclosure of agency (buyer/sellers agent must be made prior to

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Article 16, contd 16-11 written disclosure to unlisted property owners upon

first contact 16-12 written disclosure to buyers / sellers of agency with

seller /(cis) must be presented at contract 16-13 all dealings shall be between buy or sell agent 16-14 informed consent for dual compensation 16-15 compensation from your broker only 16-16 shall not offer to change compensation with offer 16-17 shall not extend listing broker compensation to other

brokers 16-18 shall not refer listing brokers clients to other realtors 16-19 signs placed on property only with seller / LL

consent

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Article 17: arbitration mandates resolution ofmoney disputes through arbitration not litigation Procuring clause 17-1 filing of litigation = refusal to arbitrate 17-2 not required to arbitrate if all parties agree 17-3 realtors who are principles do not have to arbitrate 17-4 listing broker may not have to be involved

Mediation all boards offer mediation as a way toresolve disputes

Mediation may result in both brokers receiving a part of thecommission, Arbitration results in procuring cause receiving all the

money. Pathways to Professionalism

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ENFORCEMENT OF THE NAR CODE OF ETHICS

Introduction: NAR Code of Ethics handled local /sometimes state level by grievance and professionalstandards committees.

NAR provides policies and procedures in NAR Code ofEthics and arbitration manual / purpose is to ensuredue process for all parties.

Due Process: Rights Include: Right to know nature of complaint / arbitration in advance Opportunity to prepare defense.

Right to call witnesses Right to present evidence Right to cross-examine Right to have legal counsel Right to have panel of impartial peers.

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Role of the Grievance Committee Complaints can come from realtors or general public SOP can be cited as evidence Grievance committee reviews and may dismiss or forward to

professional standards hearing panel. In a request for arbitration complaint goes to arbitration hearing panel.

Professional Standards Hearing Panel Members chosen based on experience and ability to provide unbiased

and objective resolution. Hearing panel made up of uneven number selected from professional

standards committee

Both parties given opportunity to present their side and may bring legalor realtor counsel. Standards of proof: clear, strong and convincingevidence. Decision may be appealed to local board of directors.

Recommended Sanctions No specific sanction or discipline is mandated. However recommended sanctions can be found in the Code of Ethics

and arbitration manual.

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Professional Standards Hearing Panel, contd Sanction imposed may be influenced by past track record of

ethics: Letter of Warning in member file Letter of reprimand to member file

Requirement to attend ethics portion of board indoctrinationcourse: Or other appropriate ethics course Appropriate and reasonable fine up to $5,000 Probation 30 days 1 year Suspension 30 days 1 year Expulsion 1- 3 years Suspension of MLS rights 30 days 1 year Termination of MLS rights 30 days 1 year Processing fees up to $500

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Arbitration Hearing Panel Article 17 requires members to resolve financial disputes through

arbitration rather than court. Based on C of E arbitration manual panel will determine which of the 2

parties was the procuring cause. Proof is preponderance of theevidence decision is not subject to appeal.

NAR case interpretations: Case #1-28 (article 1 Case #28) (violation of 1-15 to reveal all offers). Case #2-7 (article 2 case 7) (you are committed to avoid misrepresentation) Case #3-7 (article 2 duty to cooperate) timely communicate (no violation) Case #11-4 Disclosure of Limited Appraisal Experience

No violation a client was aware of realtors lack of experience

Case # 16-18 Assumed consent for direct contact. Violation of Article 16 realtors shall not engage in any practice or take any action inconsistent

with exclusive representation. Case #17-1 Obligation to submit arbitration. Violation board of realtors is

a voluntary members accept binding arbitration.

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CURRENT ETHICAL ISSUES

Unethical or Just Aggressive: the hot market is cooling -- Pocket Listings: Not unethical if seller allows brokers to market this way does not meet

standard of broker cooperation see article 3 also agency whoseinterest is served by not going to MLS

No offers considered until next Tuesday:

Article 1, SOP 1-6 all offers shall be presented objectively and asquickly as possible

Raising the Ante escalation addendum, see app. B, page 83 Cannot counter at the max price if you do not have a matching offer. Multiple Offer Protocol: All offers should be presented objectively & fairly

price, financing terms & contingencies closing date should be

considered. Highest & Best primary contract should be set. Shopping the Contract When Demand outreaches supply- auction atmosphere can be created. Highest price is not always the best offer.

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Case Study #1 shopping the contract Not illegal Not unethical Sellers are not obligated to accept any offer highest & best and designate 1 offer as primary.

Habla Espanol / treat all people honestly Case Study #2 -- ESL Clients (English as second

language) Raising listing price $30,000 not ok Negotiating for things not in listing ok

9.5 rate in 6% market 6 points on mortgage HVD 1 - miscrepairs - seller blaming listing agent

New Real Estate Business Models: It is unethical and illegal to badmouth a broker because of a

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The A Team $150 million 600 units / tell the truth if this is a team effort. Is Bigger Better: MegaFirms have been created thru mergers / buy outs

w/ 80-150 agents Discount Brokers: discount to client only contributing to a charity /

supporting local school, ok Fee-for-service: Menu MLS ADV Open House Contract Negotiation

advantage is to knowledgeable buyer or seller Helping the Owner: Limited service for FSBOs / not full services Unethical, Illegal or What? Boycotting limited service brokers is unethical

buyer agent should be prepared to do all the work not fair But its the law: do not call is ethical no longer legal. Dont Call Me: 10/1/03 FTC FCC Do not call list

Does not apply to: existing relationship 18 months after transaction or 3 monthsafter inquiry. As of 1/1/05 broker is required to search every 31 days $11,000 fine broker has to have a do not call policy Poster: www.realtor.org FSBOs are ok to discuss potential purchase not to solicit listing

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Youve Got Mail: email-junk use only if necessary However buyers want listings

General Mailings Legal however can spam act requires all commercial

messages include:

Return email and P.O. address Opt out with 30 days notice Message in an advertisement is a solicitation

To Fax or Not to Fax: 7/9/05 Junk Fax Prevention Actunsolicited fax messages illegal

Ill Never Tell: we must keep confidential info received evenbeyond termination of the relationship. FACTA: (Fair & Accurate Credit Transaction Act 6/1/05)

Requires all CO and individuals to destroy sensitive info priorto disposing.

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Understanding RESPA old dog, new tricks 1974 purpose: to provide consumers with disclosures of closing costs

and eliminate kickbacks and referral fees Dept of HUD is responsiblefor administering RESPA

Entities Subject to RESPA Real estate brokers and agents

Mortgage bankers and brokers Title company and agents Home warrant companies Hazard insurance agents Appraisers Flood and tax service providers Home and pest inspectors

RESPA: prohibits re agent from receiving a thing of value for referringbusiness

A realtor shall not accept any commission, rebate or profit or expendituresmade for their client without clients knowledge and consent. Whenrecommending products or services realtor shall disclose any financialbenefits or fees (other than referral fees).

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Exceptions to RESPA Rules: RESPA prohibits splitting of fees except for a service performed.

Exceptions: Promotional and education activities Payments in return for goods and services see table 5.1 page 62 Affiliated business arrangement. Referral brokers and agents are permitted to own an interest in a mortgage

and title company as long as relationship is disclosed and customer is notobligated to use the company no payments can be received other thanthose based on ownership interest. See: NAR website: www.realtor.orgunder RESPA dos and donts See: 5.1 page 62 for prohibited activities.

On the web: 75% of people use the internet to find a new house

Realtor.com Cannot copy info from another brokers listing without permission.

Such a Deal I Have for You Predatory lending: characteristics: high interest rates, unnecessary

fees, pre-payment penalties, premium credit insurance. Lender may encourage borrower to falsify income or debt.

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Sub Prime Lending: (high risk borrowers) highinterest / more down / shorter term / bad credit

Interest can be lowered with prompt payment.Ethics become involved when a lender forces a

borrower into a subprime loan when he canqualify for a regular loan.

The Role of the Realtor: We have a duty and aresponsibility to assist our clients in finding a

good mortgage source. Source: center for responsible lending.

www.responsiblelenaing.org

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MAKING ETHICAL DECISIONS

Behaving in an ethical manner is easy as long as you go by theGolden Rule: Do unto others as you would have them do unto you.

The Platinum RuleDo unto others as they would like to be doneunto.

Self-Testing for Ethical Decisions: Whenever faced with makingan ethical decision take a good look at yourself. Start byanswering questionsTom Morris Six Tests fir Ethical Action

Six Tests for Ethical Action: Tom Morris is a philosopher /consultant NAR The publicity test: Would I want to see this action in press The transparency test: Do I have a clear explanation for action What

are my motives? The moral mentor test: What would my mentor do? The admired observer test: would he/she be proud of decision? The man/woman in the mirror test: Will I be able to look myself in the

mirror and respect the person I see? The Golden Rule test: Would I like to be on the receiving end of this

action and consequences?

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Into the Looking Glass: View ethical dilemma from 4 perspectives: Look at yourself do you have ulterior motives do you stand to gain or

lose by outcome are you letting previous experience influence yourthinking.

Look at the parties involved: do you favor one over the other. Is there apattern to behavior is this influencing your decision are outside

influences affecting the actions of parties. Look at the circumstances. Do you know all the details that led to theproblem. Are there extenuating circumstances. Have you personallyexperienced a similar situation.

Look at the outcome how will each party be affected by your decision.Will this decision have an ongoing effect on other parties. Will your decisionalter your relationship with any of parties.

The Bottom Line: Can I make a fair and unbiased decision that I am willingto live with? If there is even the slightest hint that there could be aperceived conflict of interest the problem should be turned over to someoneelse.

Real estate conflict of interest actual or perceived Dual agency has the potential for conflict of interest. To consumer

perception is reality.

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Avoiding Conflict of Interest

Consider: Can you make the same unbiased independentjudgment that would be expected from anyone in your position.

Is there anything about this situation that someone might question

your ability to be objective. Do you have a personal interest in the outcome?

Could you defend your decision?

Right vs. Wrong or Right vs. Right Killing vs. war stealing vs. eating

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Principles for Decision Making The most commonly used principles for decision making fall into three

categories Ends-Based doing what is the greatest good for the most people Rule-Based following established rules regardless of consequences Care-Based following the Golden Rule

Applying the Principles: Truth vs. Loyalty Megan's Law -- Case #4, page 18 Gloria could make a rule based decision by saying nothing. An end-based

decision would require her to take into consideration what is best for allparties.

Individual vs. Community: - How much must I say? Case #5 , page 20 Katherine could continue with sale - say nothing and consider her rule

based decision ok. Trying to work out the best solution for the greatestnumber of persons would be end-based.

Short Term vs. Long Term: joint vs. common when 1 of clients is gettingmarried consider common suggest discussion with attorney.

Justice vs. mercy:when one of your clients dies. Read M/M Hamiltonsstory.

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Help in Making DecisionsWhen in doubt disclose) seek help (ethical decision)

Code of ethics state laws rules and regs-published standards of conduct

Results from previous cases can provide guidance A Final Word: After careful study and thoughtful consideration you

should reach a decision that you feel in your heart isfair and unbiased and conforms to the best standardsof ethical business practice.

Learn to live with your decision and be ready for thenext ethical challenge.

ethics in todays world3

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