Nov. 19, 2018 – Dear Anne: My seller agreed to a contract with a sale of buyer’s property contingency, but my seller added a Kick Out Clause on the contract for sale and purchase, which the buyer then accepted.
The seller is leery but wants to give the buyers a chance to buy the property – but she also doesn’t want to lose days on the market should the deal fall through. The buyers understand the seller’s concerns and even included “permission” in the contract for my seller to keep the property advertised as “active” in the MLS.
I don’t see a problem if both sides agree in writing, do you? Other agents do it for far less legitimate reasons, so why can’t I? After all, I’m doing what the seller requested – Signed, Copycat
Dear Copycat: This question comes up from time to time. Some agents believe that if both the buyer and seller agree to leave the listing active, it’s A-Okay.
But it’s not.
MLS rules require the listing agent to move the property from active to pending (in some MLSs it’s called “contingent”) within a specified timeframe. Putting a property into a “pending” status doesn’t preclude your seller from accepting back up offers – but yes, I’m aware that once a property goes pending, it falls off the radar.
The fact that the buyer and seller agreed to keep the listing “active” doesn’t negate your obligations under the Code of Ethics nor your agreement to abide by MLS rules.
If you do decide to leave the listing in “active” status, you risk being fined by your MLS for a violation of the MLS rules. And, I would like to point out Standard of Practice 3-6 of the Realtors Code of Ethics, says, “Realtors shall disclose the existence of accepted offers, including offers with unresolved contingencies, to any broker seeking cooperation.” Changing the status in the MLS enables brokers to make this disclosure across the board.
Article 12 of the Code of Ethics says Realtors are bound to be honest and truthful in their real estate communications and “shall present a true picture in their advertising, marketing and other presentations.” A hearing panel of your peers may conclude that advertising a listing under contract as “active” is misleading and dishonest to consumers and real estate professionals alike.
Before you act, remember: You could be putting your business reputation at risk.
Anne Cockayne is Director of Policy Services for Florida Realtors
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