Expediency, convenience, desire to get an accepted offer before someone else does, aren’t permitted exceptions.
Prior to acceptance is never interpreted to mean “or within X days after acceptance”. In the case of the Federal Lead Paint Hazard disclosure rules, there is no work-around. Prior to acceptance is not, “…within (any time or days) after acceptance”. Expediency, convenience, or a desire to get an offer accepted before someone else does, aren’t exceptions to the rule. If your firm has a work-around, your participation is ill-advised.
A policy does not need to be in writing to be a policy. Evidence of practice repeated, known, and unaddressed might be enough to determine a firm has a policy of violating LBP disclosure law. Penalties levied by HUD for lead hazard disclosure failures are significant and increase when children are involved. When the failure to properly disclose is a standard practice permitted by the firm in special circumstances, the consequences could be dire. Your broker’s willingness to bypass the law doesn’t grant you a free pass to participate risk-free.
For some people skipping the “prior to” and risking the penalty may be less painful than the reward of a statistic and a few dollars more is gratifying. For the rest of us doing the right thing because it’s good for the client, and in compliance with the law is always the better choice. Even if the pay-off is just a better night’s sleep.
In the category of no-win situations licensees who answer yes or no to the question “Do you have other offers?” is going to look bad to someone who cares about the answer. The REALTOR Code of Ethics, and the State of Wisconsin laws regarding disclosure read separately have something for everybody to point to when they want to accuse a licensee of failing them or failing to meet their expectations. Fortunately, the response which keeps the licensee on the right side of the law can be determined if the people involved in the conversation are willing to follow a path of logical thinking.
The Code of Ethics sets standards and parameters for ethical fair-play. Ethics are inherently subjective to norms. Your standard of ethics may be higher than those in the Code, and you are welcome to practice your standard. Holding others to your superior standard will result in your expectations being unmet time and again. All REALTORS are subject to the Code of Ethics, but all REALTORS do no practice is every state. State law dictates legal practice standards. Legal standards when greater than an Association Ethical Standard take precedence.
When the question is disclosure of other offers or possible other offers the Rule and the Code are going to send you on a tail chasing circle. NAR Standard of Practice 1-15: IN response to inquiries…(REALTORS) shall, WITH THE SELLERS’ APPROVAL, disclose the existence of offers on the property. OK. When the seller approves disclosing the existence of offers a REALTOR MUST disclose. Question: “Do you have any offers on the property?” With the sellers’ approval you must answer YES if indeed you do have offers. Does the listing contract give you automatic approval to disclose you have other offers? No. How will you know if you do or do not have approval from seller? Do you assume you do or you don’t have permission? Murky.
What does the law say? REEB 24.12 speaks to confidentiality. “…a licensee may, but is not required to, disclose information known by the licensee regarding the existence of other offers on the property…”. Where are we now? Do we disclose or don’t we? Depends.
Do we have an ethical and or legal responsibility to give honest answers, provide accurate information, avoid misrepresentation? Yes, and yes. But…if the client gives us a lawful instruction to keep existence of offers or the fact that no offers are in or coming in confidential, we are to keep the facts confidential. Does that mean we can lie? No. When our answer the accurate representation of a fact related to presence of offers is YES or NO and the answer is contrary to the lawful direction of the client, the only answer is: “It’s confidential”. Does “it’s confidential” remove you from an accusation of ill intentions? Nope. Someone is not going to like the answer.
So what do we learn? The best defense against an accusation is, DON’T participate. The best defense against being found guilty is documentation. Amendments and Notices are proper forms for documenting lawful instructions. An email or a text will help. Your recollection of a phone call, or your opinion of what is standard practice, or best for your reputation are insufficient and possibly just wrong. Depend on the literal interpretation of the law, and the Code. And then make sure the client’s direction is in writing, and lawful.
Cases and Lessons from Wisconsin Courts provided by the WRA in the October 2016 issue of The Wisconsin Real Estate Magazine could keep you out of harms way. Intentional fraud is one way to be found liable but deception is not required to be liable. Being negligent or failing the expectation of strict responsibility (A licensee is expected to know better or the law was specific in my obligation and I failed to be responsible) will put us on the wrong side of liability just as well.
If it hasn’t happened yet, it will happen where an owner balks at disclosing and asks you for your advice on disclosure. Case Study #1 in the feature article makes it clear and simple—Disclosure is the way to go. Case Study #2 we see too much of. As-is is no protection for seller or brokers. There is no way to wash hands of liability for saying take it as is when an adverse fact is known.
The WRA legal division has a finger on the pulse of Wisconsin real estate law issues. Take time to read their Cases and adopt their advice. Maybe share the Case Studies with your clients. You will never regret disclosure.