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Know the Code: Real Estate Ethics By Doris Barrell, GRI, DREI T: (908) 415 -

Know the Code:

Real Estate Ethics

By Doris Barrell, GRI, DREI

T: (908) 415 - 6138

07728

400 West Main Street, Freehold, NJ

Email: gmuls@verizon.net

1

ETHICS IN TODAY’S WORLD

ETHICS IN TODAY’S WORLD  Ethics: Doing What is Right  This text will prepare you

Ethics: Doing What is Right

This text will prepare you for future ethical dilemmas.

“Real integrity is doing the right thing, knowing that no one’s going to know

whether you did it 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 our concern 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 your family is an 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.”

ETHICS IN TODAY’S WORLD

ETHICS IN TODAY’S WORLD  Ethics and the Boardroom: The American public is highly suspicious of

Ethics and the Boardroom: The American public is highly suspicious of big business Enron, WorldCom, etc.

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: “under promise and over deliver”

Heroes: Are you a hero to your client? Who do you respect?

Professional Associations & Companies: Does your company want to

follow these guidelines or is the marketplace “a place set apart where

we 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 salesperson should take this course.

ETHICS IN TODAY’S WORLD

ETHICS IN TODAY’S WORLD  Case Study # 2 – The duo of deceit, “everybody does

Case Study # 2 – The duo of deceit, “everybody does it.” Don’t let success 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 Q’s teaching imply forgiveness or condoning bad behavior?

Cheating: Have you ever downloaded information for a term

paper?

Passing a student because parents are contributors?

Ethics and the locker room

Steroids

ETHICS IN TODAY’S WORLD

ETHICS IN TODAY’S WORLD  Case Study # 3 – Is winning everything?  If a

Case Study # 3 Is winning everything?

If

a school

standards?

is

going bankrupt -- should it lower its academic

Would

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?

it

be

right for the broker to provide laptop

PDAs

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 ethical principals can make a difference mandating continuing education will help.

ETHICS AND THE REAL ESTATE PROFESSIONAL

ETHICS AND THE REAL ESTATE PROFESSIONAL  Realtors come from other fields: business world (ATT/Lucent), teachers,

Realtors come from other fields: business world (ATT/Lucent),

teachers, nurses, retirees, sales. Lessons learned from past

experience 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 a

better way of life and status in the community

Professional Associations

National Association of Realtors Code of Ethics

Appraisal Institute Code of Professional Ethics & Standards of

Professional Appraisal Practice

Mortgage Brokers Association Canons of Ethics

Primary goal of these associations is to increase public’s awareness of the values and integrity that can be expected from dealing with these professionals.

ETHICS AND THE REAL ESTATE PROFESSIONAL

ETHICS AND THE REAL ESTATE PROFESSIONAL  State Regulators  A real estate license is required

State Regulators

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 hours of ethics training.

Arello: association of real estate license law officials promotes uniform 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 of membership. Applied to approximately 1,000,000 members today.

The code makes “who do you represent” very clear. Late 1980s

legislation required disclosure of agency.

1990s buyer agency became law – “client/customer.Do you know the difference?

“Payment of commission can be buyer, seller, LL, tenant, but not both in a dual agency

“Conflicts of Interest” (Dual Agency)

ETHICS AND THE REAL ESTATE PROFESSIONAL

ETHICS AND THE REAL ESTATE PROFESSIONAL  Agency Issues for Residential Agents  Client = agency

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 company listing.

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 a property you have showed to her?

For discussion: 1-8, page 16

(Answer case study questions: page 16)

8

ETHICS AND THE REAL ESTATE PROFESSIONAL

ETHICS AND THE REAL ESTATE PROFESSIONAL  Case Study #2 – For sale by owner 

Case Study #2 For sale by owner

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

(Answer case study questions page 17)

Case Study #3 Selling your own listing

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

(Answer case study questions page 18)

Case Study #4 – Megan’s Law

Should we reveal what we know even if it will jeopardize our client’s interests?

(Answer case study questions page 19)

ETHICS AND THE REAL ESTATE PROFESSIONAL

ETHICS AND THE REAL ESTATE PROFESSIONAL PART II  Other real estate specialties  Commercial Real

PART II

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

ETHICS AND THE REAL ESTATE PROFESSIONAL

ETHICS AND THE REAL ESTATE PROFESSIONAL  Case Study #5 – How much must I say?

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

“Everyone’s green”

ETHICS AND THE REAL ESTATE PROFESSIONAL

ETHICS AND THE REAL ESTATE PROFESSIONAL  Case Study #6 – The get-out-of-lease card  Whose

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 of Real Estate Appraisers share a common goal to elevate the profession by establishing high standards by making

business practice and ethics a required course in

continuing education carried out by appraisal institute in an area where they are doing an appraisal cannot appraise your own listing. “value check.Realtors who are

also appraisers should not list property they have prepared

an appraisal for.

12

ETHICS AND THE REAL ESTATE PROFESSIONAL

ETHICS AND THE REAL ESTATE PROFESSIONAL  Case Study #8 – Is it worth it? 

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 “neutral person”

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)

ETHICS AND THE REAL ESTATE PROFESSIONAL

ETHICS AND THE REAL ESTATE PROFESSIONAL  Case Study #10 – Up to the limit 

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

organizations. Many ethical dilemmas revolve around agency and the responsibility of the agent to clients and customers.

state

is

recognized

by

regulators

and

professional

NATIONAL ASSOCIATION OF REALTORS CODE OF ETHICS

NATIONAL ASSOCIATION OF REALTORS – CODE OF ETHICS  Introduction: 2.5 mandatory hours – how many

Introduction: 2.5 mandatory hours how many of you have

viewed the DVD?

From the beginning: 1913 1 st code mandatory 1924

“Under all is the land,” page 74 preamble

A living document: edited every year (NAR Professional Standards Committee), (SOP) Standards of Practice created

to 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 of ethics and arbitration manual (NAR)

NATIONAL ASSOCIATION OF REALTORS CODE OF ETHICS

NATIONAL ASSOCIATION OF REALTORS – CODE OF ETHICS  The NAR Code of Ethics  Original

The NAR Code of Ethics

Original (1913) code contained 22 articles. 1970s 5 articles moved to preamble. 17 were grouped into 3 categories (1) duties to 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

NATIONAL ASSOCIATION OF REALTORS CODE OF ETHICS

NATIONAL ASSOCIATION OF REALTORS – CODE OF ETHICS  Duties to Clients/Customers (article 1-9)  Article

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.

NATIONAL ASSOCIATION OF REALTORS CODE OF ETHICS

NATIONAL ASSOCIATION OF REALTORS – CODE OF ETHICS  Article 2 – disclosure – avoid exaggeration

Article 2 disclosure avoid exaggeration misrepresentation or concealment of pertinent facts. We are not obligated to discover 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 “affirmative obligation”

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

NATIONAL ASSOCIATION OF REALTORS CODE OF ETHICS

NATIONAL ASSOCIATION OF REALTORS – CODE OF ETHICS  Article 4 & 5 personal interest /

Article 4 & 5 personal interest / buy or sell

Article 6 No Kickbacks

No commission rebate profit may be accepted without clients knowledge and consent (respa) service must be rendered referred (mort) home warranty. 1 stop brokerage.

Articles 7 & 8 Commissions & Escrow

(7)

informed

compensation

written

consent

(disclosure)

for

dual

(8) trust account must be separated from business account

Article 9 get it in writing /if it’s not in writing it doesn’t

count

Extensions on mortgage commitment list agreement copies to client immediately.

SOP 9-1 Written extensions

NATIONAL ASSOCIATION OF REALTORS CODE OF ETHICS

NATIONAL ASSOCIATION OF REALTORS – CODE OF ETHICS  Duties to the Public (articles 10-14) 

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 panic

selling

10-2 demographic info is ok

10-31 cannot advertise preference or limitations “no Irish”

10-4 applies to employees & independent contractors

NATIONAL ASSOCIATION OF REALTORS CODE OF ETHICS

NATIONAL ASSOCIATION OF REALTORS – CODE OF ETHICS  Article 11 : area of expertise: don’t

Article 11: area of expertise: don’t try to handle properties beyond 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) place a sign on property.

NATIONAL ASSOCIATION OF REALTORS CODE OF ETHICS

NATIONAL ASSOCIATION OF REALTORS – CODE OF ETHICS  Article 13: Don’t practice law – recommend

Article

13:

Don’t

practice

law

recommend

counsel when necessary Article 14: code enforcement

legal

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 board for 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 multiple complaints for the same event

Article

15:

competitors

do

not

make

false

or

misleading statements about competitors

SOP 15-1 Shall not file false or unfounded ethics complaints

NATIONAL ASSOCIATION OF REALTORS CODE OF ETHICS

NATIONAL ASSOCIATION OF REALTORS – CODE OF ETHICS  Article 16 – representation  Shall not

Article 16 representation

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.

SOP

16-1 not intended to prohibit ethical innovative business practices

16-2 general announcements tel marketing mailing etc ok

16-3 calling another broker’s 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

contract

NATIONAL ASSOCIATION OF REALTORS CODE OF ETHICS

NATIONAL ASSOCIATION OF REALTORS – CODE OF ETHICS  Article 16, cont’d  16-11 written disclosure

Article 16, cont’d

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 consent

placed on property

only with

seller

/

LL

NATIONAL ASSOCIATION OF REALTORS CODE OF ETHICS

NATIONAL ASSOCIATION OF REALTORS – CODE OF ETHICS  Article 17: arbitration – mandates resolution of

Article

17:

arbitration

mandates

resolution

of

money 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 to resolve disputes

Mediation may result in both brokers receiving a part of the

commission,

Arbitration results in procuring cause receiving all the money.

Pathways to Professionalism

Conclusion

ENFORCEMENT OF THE NAR CODE OF ETHICS

ENFORCEMENT OF THE NAR CODE OF ETHICS  Introduction: NAR Code of Ethics handled local /

Introduction: NAR Code of Ethics handled local / sometimes state level by grievance and professional

standards committees. NAR provides policies and procedures in NAR Code of Ethics and arbitration manual / purpose is to ensure due 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.

ENFORCEMENT OF THE NAR CODE OF ETHICS

ENFORCEMENT OF THE NAR CODE OF ETHICS  Role of the Grievance Committee  Complaints can

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 legal

or realtor counsel. Standards of proof: clear, strong and convincing

evidence. 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.

ENFORCEMENT OF THE NAR CODE OF ETHICS

ENFORCEMENT OF THE NAR CODE OF ETHICS  Professional Standards Hearing Panel, cont’d  Sanction imposed

Professional Standards Hearing Panel, cont’d

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 indoctrination course:

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

ENFORCEMENT OF THE NAR CODE OF ETHICS

ENFORCEMENT OF THE NAR CODE OF ETHICS  Arbitration Hearing Panel  Article 17 – requires

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 the evidence 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 to arbitration. Violation board of realtors is a voluntary members accept binding arbitration.

Conclusion: We are obligated to support the code of ethics and bring unethical behavior to the attention of the local board.

CURRENT ETHICAL ISSUES

CURRENT ETHICAL ISSUES  Unethical or Just Aggressive: the hot market is cooling --  Pocket

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 whose interest 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 as

quickly 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.

CURRENT ETHICAL ISSUES

CURRENT ETHICAL ISSUES  Case Study #1 – shopping the contract  Not illegal  Not

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.

Answer case study questions page 55

Case

Study

language)

#2

--

ESL

Clients

(English

as

second

Raising listing price $30,000 not ok

Negotiating for things not in listing ok

9.5 rate in 6% market

6 points on mortgage

HUD 1 - “misc repairs” - seller blaming listing agent/answer case study questions page 57

New Real Estate Business Models:

It is unethical and illegal to “bad mouth” a broker because of a different business model.

31

CURRENT ETHICAL ISSUES

CURRENT ETHICAL ISSUES  The A Team – $150 million – 600 units / tell the

The A Team $150 million 600 units / tell the truth if this is a team effort.

Is Bigger Better: “Mega Firms” 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 FSBO’s / 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 it’s the law: do not call is ethical no longer legal.

Don’t Call Me: 10/1/03 FTC FCC Do not call list

Does not apply to: existing relationship 18 months after transaction or 3 months

after 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

FSBO’s are ok to discuss potential purchase not to solicit listing

CURRENT ETHICAL ISSUES

CURRENT ETHICAL ISSUES  You’ve Got Mail : email-junk use only if necessary  However –

You’ve 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 Act unsolicited fax messages illegal

I’ll Never Tell: we must keep confidential info received even

beyond termination of the relationship.

FACTA: (Fair & Accurate Credit Transaction Act 6/1/05) Requires all CO and individuals to destroy sensitive info prior to disposing.

CURRENT ETHICAL ISSUES

CURRENT ETHICAL ISSUES  Understanding RESPA “old dog, new tricks”  1974 – purpose: to provide

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 responsible for administering RESPA

Entities Subject to RESPA

Real estate brokers and agents

Mortgage bankers and brokers

Title company and agents

Home warranty companies

Hazard insurance agents

Appraisers

Flood and tax service providers

Home and pest inspectors

RESPA: prohibits real estate agent or broker from receiving a “thing of value” for referring business

A realtor “shall not accept any commission, rebate or profit or expenditures made for their client without clients knowledge and consent. When recommending products or services realtor shall disclose any financial benefits or fees (other than referral fees).

CURRENT ETHICAL ISSUES

CURRENT ETHICAL ISSUES  Exceptions to RESPA Rules:  RESPA prohibits splitting of fees except for

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 not obligated to use the company no payments can be received other than those based on ownership interest.

See: NAR website: www.realtor.org under RESPA dos and don’ts

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 broker’s 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.

Conclusion: Change is inevitable, we have a responsibility to make an effort to observe, study and work to understand current ethical issues.

CURRENT ETHICAL ISSUES

CURRENT ETHICAL ISSUES  Sub Prime Lending: (high risk borrowers) high interest / more down /

Sub Prime Lending: (high risk borrowers) high

interest / 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 can

qualify for a regular loan.

The Role of the Realtor: We have a duty and a

responsibility to assist our clients in finding a

good mortgage source.

Source: center for responsible lending. www.responsiblelenaing.org

MAKING ETHICAL DECISIONS

MAKING ETHICAL DECISIONS  Behaving in an ethical manner is easy as long as you go

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

The Platinum Rule – “Do unto others as they would like to be done unto.”

Self-Testing for Ethical Decisions: Whenever faced with making an ethical decision take a good look at yourself. Start by answering questions – Tom Morris’ Six Tests for 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?

MAKING ETHICAL DECISIONS

MAKING ETHICAL DECISIONS  Into the Looking Glass: View ethical dilemma from 4 perspectives:  Look

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 your thinking.

Look at the parties involved: do you favor one over the other. Is there a pattern 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 the problem. Are there extenuating circumstances. Have you personally experienced 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 decision alter your relationship with any of parties.

The Bottom Line: Can I make a fair and unbiased decision that I am willing

to live with? If there is even the slightest hint that there could be a

perceived conflict of interest the problem should be turned over to someone else.

Real estate conflict of interest actual or perceived

Dual agency has the potential for conflict of interest . To consumer perception is reality.

MAKING ETHICAL DECISIONS

MAKING ETHICAL DECISIONS  Avoiding Conflict of Interest  Consider: Can you make the same unbiased

Avoiding Conflict of Interest

Consider: Can you make the same unbiased independent

judgment 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

MAKING ETHICAL DECISIONS

MAKING ETHICAL DECISIONS  Principles for Decision Making  The most commonly used principles for decision

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 all parties.

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 greatest

number of persons would be end-based.

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

Read M/M Hamilton’s

Justice vs. mercy: when one of your clients dies. story.

MAKING ETHICAL DECISIONS

MAKING ETHICAL DECISIONS  Help in Making Decisions – “When in doubt – disclose) – seek

Help in Making Decisions – “When in doubt –

disclose) seek help (ethical decision)

Code of ethics state laws rules and regulations- 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 is fair and unbiased and conforms to the best standards

of ethical business practice.

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