Mike M

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Richard V. Foster, Esq.
Nevada Perfect Homes - Henderson, NV
Broker (58356) - ABR/M, CREN, CRS, GRI, RRG, SFR

NO . . . You are not responsible for a seller's actions.

 

With that said, to protect yourself, anytime you cross that type of behavior, you need to "correct and distance" yourself.  If you witness prohibited actions, you are REQUIRED to take corrective action, e.g., telling the seller that such statements are a violation of federal law.

 

You are also required  to distance yourself, e.g., telling the buyer(s) that such statements are not representative of your understanding of fair housing rules. You should tell the buyer(s) that you are NOT responsible for the statements of the owner, and offer to be a witness if needed.

I personally would do so in both verbal, and I would write an email to the buyer(s) and print a copy for the transaction file. This will have the affect of providing written pro should you be subjected to investigation of a complaint.

Finally, if the violation saw egregious enough, I would report the behavior to HUD. At the very least, I would report  the agent to your local association's Professional Standards department for an ethics violation of Article 10 of the REALTOR Code of Ethics.

Jan 06, 2015 02:54 AM
Rainmaker
456,782
Shannon Milligan, Richmond VA Real Estate Agent/Associate Broker
RVA Home Team - Richmond, VA
RVA Home Team - Winning with Integrity.

One, Fair Housing rules and regs have to be followed. Two, why is the seller talking to the buyer to begin with? (That's why we have buyer agents and listing agents) Third, I don't see how a listing agent can be liable for something that comes out of another's mouth but I do see where the listing agent should step up and say they can no longer work with that individual. I am not an attorney and this is just my opinion. Please consult a real estate attorney for specifics. 

Jan 05, 2015 06:42 AM
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Bob Crane
Woodland Management Service / Woodland Real Estate, Keller Williams Fox Cities - Stevens Point, WI
Forestland Experts! 715-204-9671

Do we have any control over what fsbos say?

Sep 03, 2019 11:44 PM
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Dipti Thakkar
LAER Realty Partners - Andover, MA
On a team with Praful Thakkar

Not for FSBO.

May 17, 2018 10:48 PM
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Ajay Pandya
e-Merge Real Estate - Columbus, OH
Realtor Ajay Pandya

Not sure this is true for FSBO.

Jan 08, 2018 04:23 PM
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Praful Thakkar
LAER Realty Partners - Andover, MA
Andover, MA: Andover Luxury Homes For Sale

Mike, not true! Sellers can do what they want to!

Aug 11, 2017 11:24 PM
Rainmaker
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Tony and Suzanne Marriott, Associate Brokers
Serving the Greater Phoenix and Scottsdale Metropolitan Area - Scottsdale, AZ
Haven Express @ Keller Williams Arizona Realty

Doubt it

Apr 29, 2017 04:25 AM
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Mike M

Thanks Richard Foster. This seems like the most useful answer.

Jan 06, 2015 04:15 AM
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Mike M

RVA HomePRO Michael Hottman  : as stated, the comments are in the eSign system .. not the O&A forms.

Annette Lawrence : The seller is unrepresented. The seller needs to be able to post some type of comment, for example to coordinate the best time for everyone to sign. The seller does not want to give out their personal email for the agent to email them which is one reason they choose to communicate through our system.

Jan 06, 2015 01:49 AM
Rainmaker
798,307
Jeff Pearl
RE/MAX Distinctive / LIC in VA - Lovettsville, VA
Full Service Full Time Realtor

Someone might need an attorney. But also, if a seller makes comments like that, the agent is suppose to inform seller that he/she can no longer represent them, cancel the listing agreement, and report it to their broker.

Jan 05, 2015 11:30 PM
Rainmaker
831,373
Annette Lawrence , Palm Harbor, FL 727-420-4041
ReMax Realtec Group - Palm Harbor, FL
Making FLORIDA Real Estate EZ

Yes Mike, you must remove, not allow, client entered comments.

You should allow for agent or professional (accountable) comments to be added to enhance or ensure the progression of the transaction.

Be very aware, when such and event takes place, your company will be in the cross hairs also.

However, the agent is not liable for comments your company allows a client to enter that is beyond the control or supervision of the agent. Would it not be nice if we could, by decree, ban STUPID. That is not possible at this time so the space in which STUPID can operate must, by necessity, be reduced or eliminated.

If I was aware your software created such risk I would not use it either. It is hard to put humpty dumpty back together.

Jan 05, 2015 09:54 PM
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Nina Hollander
Coldwell Banker Realty - Charlotte, NC
Your Charlotte/Ballantyne/Waxhaw/Fort Mill Realtor

I've not heard this. We as agents can't be held liable for what another party says so long as we are not repeating their words.

Jan 05, 2015 08:03 PM
Rainmaker
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John Pusa
Berkshire Hathaway Home Services Crest - Glendale, CA
Your All Time Realtor With Exceptional Service

I think, seller's agent might be liable on seller's racist and sexist insults.

Jan 05, 2015 12:26 PM
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RVA HomePRO Michael Hottman
RVA HomePRO Realtor with Keller Williams serving Hanover, Henrico, Chesterfiled and Richmond, Virginia - Glen Allen, VA
Helping you achieve goals in life & real estate

Seems strange to hold one person liable for another's actions - but also why are there comments allowed on the forms? I can understand why you might need to ad things to a contract, but as far as comments it doesn't make much sense.

Jan 05, 2015 12:03 PM
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Mike M

OK, so in the question of "Should we remove [the feature which allows buyers to see seller's comments] ... to protect the buyer's agent from slurs the seller (FSBO) makes?" .. the answer seems to be "No". I agree with this.

Jan 05, 2015 10:47 AM
Rainmaker
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Bill Dandridge
MKB, Realtors - Roanoke, VA
GREEN, ABR, GRI, EcoBroker

You can not be held liable for what your client says. If you said it, that is a different matter...

Jan 05, 2015 09:57 AM
Rainmaker
1,301,826
Jon Kolsky
Kolsky Realty & Management - Long Beach, CA
Licensed California Real Estate Broker

Mike M ~ I am not a lawyer, but I have to believe that's discrimination which is a big no no

Jan 05, 2015 09:26 AM
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Mike M

Let me clarify with this example:

The eSign system being used to sign the O&A allows for any signer to leave a comment somewhere in the system for that transaction (dotloop works that way). The buyer and buyer's agent sign.

Then the seller signs and in some comments area, makes slur. The buyer logs in to download the fully signed contract and sees the slur, reports it to HUD (despite the offer being accepted).

 

Note the following:

a) The agent did not convey those prejudiced remarks from one party to the other.

b) The question is not about "what could happen to the seller".

c) I totally agree with Shannon who says: "I don't see how a listing agent can be liable for something that comes out of another's mouth", **and this is what I want to confirm**

d) I doubt equal housing rules cover this scenario to point out some sort of liability to the buyers agent. It makes no sense to hold the agent liable in the first place so how could it cover this scenario?

e) I no longer have access to that agent else I would ask them for links to their information sources.

 

The back story is: We are (yet another) eSign software company that want’s to accommodate the real estate industry. An agent we consulted insisted that we must hide all seller comments —> from the buyer <— because if the seller makes a slur, and the buyer sees it, then the buyer's agent **is automatically at fault for what the seller remarked** and liable to a huge fine.

 

That agent insisted, that because of this, no agent would want to use our eSign system. In other words .. any eSign system that allows a buyer to see seller comments/remarks is a big liability (to the buyer’s agent) waiting to happen.

 

First off, as noted above, I don’t see how anyone can hold the buyers agent responsible for seller remarks.

Second, if this is really an issue, then why do so many agents use other eSign systems that work this way (e.g. dotloop)

 

We like the idea that the buyer has access to see all comments so we don’t want to remove that feature at this time. Should we remove that feature to protect the buyer's agent from slurs the seller (FSBO) makes?

 

Your input is greatly appreciated!

Jan 05, 2015 09:17 AM
Rainmaker
4,798,978
Gabe Sanders
Real Estate of Florida specializing in Martin County Residential Homes, Condos and Land Sales - Stuart, FL
Stuart Florida Real Estate

It doesn't matter what type of loan it is, or even if no loan is involved, as this is just a violation of the Fair Housing laws.  Though, there should be no liability to the sellers' agent as long as the agent advises their client that they are breaking the law and terminates the relationship.

Jan 05, 2015 08:13 AM
Rainmaker
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Ron and Alexandra Seigel
Napa Consultants - Carpinteria, CA
Luxury Real Estate Branding, Marketing & Strategy

Yikes, when someone asks about being in a particular neighborhood because of the ethnic or lack of ethnic mix, we have chosen not to work with them.  I don't want to be associated with that type of thinking in any way shape or form.

We have had sellers ask the nationality of the person making the offer, and we have always responded with and I don't know, and that we do not ask anyone that question...

Jan 05, 2015 06:48 AM
Rainmaker
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Roy Kelley
Realty Group Referrals - Gaithersburg, MD

Agents need to be careful not convey seller statements that violate the equal housing regulations.

Jan 05, 2015 06:16 AM
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Chris Mamone
Keller Mortgage - Tacoma, WA
Senior Loan Officer

http://real-estate.lawyers.com/residential-real-estate/discrimination-and-residential-real-estate.html

The above website says sellers cannot descriminate against buyers for any reason. As far as becoming fined or any legal action, I would recommend researching Equal Housing and Fair Housing rules and regulations to see what could happen to the seller.

Jan 05, 2015 06:02 AM