Can I act as a buyer’s agent for someone who is listing his home with a different firm?

QUESTION: Several years ago, I acted as a buyer’s agent for someone (I’ll call him Sam) who purchased a home in my area. Sam recently hired an agent at another firm (I’ll call her Sue) to list that home for sale. Last week, Sam called me and asked me to assist him in finding a new home. I asked him if he had signed a buyer agency agreement with Sue. He said no. At Sam’s request, I prepared a buyer agency agreement that he has now signed. I just got off the phone with Sue. Sam told her that I would be representing him as a buyer’s agent, and Sue has accused me of unethical conduct. Have I done anything wrong?

ANSWER: Based on the facts you have provided; we do not think so.

Article 16 of the REALTOR® Code of Ethics states: “REALTORS® 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.” Here, the only exclusive agreement that Sue has with Sam is her listing agreement. In our view, you have done nothing that is inconsistent with that agreement.

There are several Standards of Practice that can assist in understanding how Article 16 applies to different situations. However, keep in mind that a REALTOR® can only be found in violation of Article 16 itself, not one of its Standards of Practice (see Statement of Professional Standards Policy no. 57).

Standard of Practice 16-18 states: “REALTORS® shall not use information from listing brokers through offers to cooperate… to… create buyer/tenant relationships with listing brokers’ clients, unless such use is authorized by listing brokers.” Here, you did not use information from Sue’s listing to target or solicit business from Sam.

Standard of Practice 16-3 states: “Article 16 does not preclude REALTORS® from contacting the client of another broker for the purpose of offering to provide, or entering into a contract to provide, a different type of real estate service unrelated to the type of service currently being provided (e.g., property management as opposed to brokerage) or from offering the same type of service for property not subject to other brokers’ exclusive agreements.” Here, although you are offering Sam general brokerage services, the service you are offering is not related to the service Sue is providing Sam under the listing agreement.

Release Date: 12/14/2017