BrokerBryant.com: How to list a property that's already listed.

Reserved Parking For "The Lovely Wife"...TLW...ROAR!

Hun...

I have fifty bucks that says before this day is done, someone is going to tell you that you're breaking the "law". Or better yet, you're "unethical" :)

TLW...ROAR!

BB,

I see it a lot now and I saw it a lot then...I'll go as far as talking to them if they solicit me and I'll fill out the papers as long as they notify me when they fire the other agent...although it's not the best news for the other agent.

Bryant,

We've had this discussion before. It is indeed allowed.

"It's a far, far sadder thing than ever I've done before!"

Bill

BB,

I'd take it. There is nothing that I know of illegal about it but you would definitely have to follow the three points you made. So long as you explain to the sellers that you are not recommending that they try to cancel the other listing contract and so long as you say absolutely nothing negative about the other agent and the listing agreement is postdated then your fine.

I'm not sure how how committed the seller would be to me though since they are obviously not committed to their current agent. Maybe the question would be, do I want them as a client?

So to be safe to both myself and them, I think I would meet with them, fill out the listing agreement but hold off on all signatures until the other listing has actually expired and until such time that I can get the whole story.

:)

I've interviewed while they were listed, and most actually do then call up their listing agent and cancel it before I take over.  Usually because they're so fed up with bad service that they don't want to deal with them anymore.  I never badmouth them, but I dont' have to.  It starts with their call to me - "Hey, we hate our agent, she never does this this this and can you believe she did this?  i asked my friend and she said to call you."   Next I know, signs are down, and mine's in! 

But no, armed with the COE in case the other agent squawks, I'd do it.  However I've found most sellers don't happen to know when it expires, and don't have a copy! So it's just been better all around for them to fire the old and bring in the new!

I've never taken anything postdated because I didn't know I could do it. But I've gotten into position for when the listing expires, I relisted it. Learnt something new today.

The consumer is not indentured to a listing agent.  They are under contract.  If the owner contacts another agent and wants to line up a new listing agent following expiration or cancellation of the existing one, why would folks complain.

There is a cure for this entire matter.

SELL THE HOUSE.

I'm with Lenn.  I've taken a listing when the seller has approached me prior to expriation and waited until the broker was notified.  Not a problem, but marketing and selling the house is a far, far better way to go!

I agree with Marcy, I will market and sell the house all day long but I don't think I would put my sign in the yard next to another agents.   

Hi BB,

I like Lenn's take on this, SELL THE HOUSE! If not, I will do it for you, and if they call me to list their home, that's what I am going to do. :)

-Lisa

Hi BB~ Yes, according to the law is is ethical. I have never had it done to me, and I have never done it either.  I am sure there is always a first!

I had no idea it was legal and will absolutely do it.  It may get some panties in a wad, but that is because they are frustrated that they didn't sell it and that the seller's don't approve of them.  I hate when I lose a listing, but consider it a learning point!

Thanks for sharing!

Diane

Hi thewre. OK this post is about it being ETHICAL. Ethics and law are two different animals. Now I can't see that this would be illegal either but I am a Florida broker. Please check your State's laws.

Bryant - It is perfectly acceptable.  I may sometimes wait for the listing to officially expire in some cases, if the seller says there is a potential offer.  I don't have time for messes.  If the seller contacts you, you're cool! No ethics issue.

BB,

I have and I will! Just this week I had to hold off on so doing because there is a big legal tussle involved - divorce. Court is going back and forth on who has the right to sell.  Otherwise, it would've been postdated!

BB...

You are exactly correct. The key is that the seller must initiate the contact!

Well I'll be darned.  I am in the middle of such a situation RIGHT NOW.  I had no idea that was allowable.  Thanks for the post!

Okay, you want an ethical discussion here?  I am a person with ethics... I live my life by the golden rule... you know, the whole 'do unto others as you would have done unto you'. 

In this situation, if I am good friends with the currently listing realtor, I wouldn't do it.  Also, if it is someone that I would prefer to be "liked" by, I probably wouldn't do it.  Nashville is small and word gets around.  But take a listing in any other case - YES!

Like your new photo!!  :)

I've done this a couple of times.  We set the contract start date for the day after the other listing expires. 

I don't get why people would think it is unethical.  People have a right to move on to a different service provider.  People do it all the time with cell phone service.  As you get closer to the contract expiration you start looking at other companies.

Real estate professionals provide a service. We aren't getting married.  As such, letting a listing expire shouldn't be like a divorce.

In Ontario, a real estate registrant (brokerage, broker or sales representative) cannot interfere with a current listing but can discuss future listings.

i had no idea, but then again I am new and there is a lot to learn...thanks for the info

I was taught that we do not contact or solicit the seller .... and that they have to contact us. I guess that's what you described here. :)

Great post Bryant!  I have done this in the past too.  I will continue to do it in the future.  Bryant is absolutly correct.  This is a good business practice of taking care of the seller.  Did feel it was unethical?  Absolutly not.  The current (soon to be past listing agent) was not doing thier job or not a satisfactory job for their client.  It is all about taking care of the business we have.  Sometimes we have to give information that a seller doesn't want to hear, but in the end I think they respect you more for being truthful with them. 

Awe...

I look lovely. A little wrinkled but lovely none the less.

Call me a narcissist. I really don't give a crap :)

TLW...ROAR!

Hi Bryant -- I agree with you.  If I am adding signficant value in staging, re-design and even renovation intellectual property to help an expired selller maximize their financial bottom line as opposed just taking the listing and perhaps reducing the sales price, I won't take it if I think there is a chance it might sell and waste all that IP, but that excluded, I'm with you.

It's not unethical, of course. We do it all the time. "Marketing to begin upon expiry/termination of existing listing."

No problema. :)

The only thing is, what happens if the seller talks to more than one person and signs a post-dated listing.

I like to talk to them if they initiate the call. But it's not mine, until it's mine. I just saw recently an agent post-dated a listing, took pictures and everything. Then the listing agent was able to bring in a contract the day the listing expired.

This agent didn't wait until the fat lady sings and got muffled.

I've always known it was permissible under the stated circumstances, therefore not an ethics issue.  However, I've had the opportunity to do it in the past and I have always waited till the listing was up (risky I know). It just didn't sit right with me.  I told them we could do something the day after.

In the current market, sellers often blame the agent for the house not selling when it really isn't the agent's fault.

One more thing: I must also call you on the fact that you would be fine with it if it was done to you. I sincerely doubt that. Moreover, if another agent's listing isn't selling, I highly doubt that it is the fault of the listing agent. Most likely, it's the price. It's almost always the price. 

The one thing some agents are better at than others is standing up to their clients. You need to be strong enough to tell them that the price they want is crazy. Be willing to walk away from a bad listing. After you've done it once, you will feel empowered. Eventually, they might even call you back. They probably will respect you more, in any case.

Let me ask you a question, The next day,you get a call from a buyer wanting to look at the house, What are you going to do then? I have been asked to do what you are saying several times, I always tell the seller to call me after there current listing has expired. and the few times I go ahead and have a face to face with them. I always try to stand up for there current agent. Because if they are talking bad about them, they might talk bad aboIt you also.  back to my question, What would you do if you had a chance to sell it before you got the listing. Myself more than one time, I had someone call that I knew that house would fit there needs. Yes it hurt selling it before I got the listing, and had to split with another company. but in the end you always come out ahead . Just thank if I would have put the buyer off, In the hopes of double dipping in a few days, and the buyer bought from someone else, then you loose all .  Just because it is legal does not always make it right.

I sure did not know you could do that, Dont seem unethical and if its not illegal,  I will keep that in mind. Thanks for posting. 

I will have to check to check the legality and ethics of this in our state.    Bottom line is if I can't sell it and the client is unhappy with me then we need to move on. 

Bryant, I am with you!!!!

Perfectly legal and not unethical if the seller contacts you.  It has happened to me and I guess I had it coming because I did not meet the sellers expectations.  I have also taken post dated listings this way and see nothing wrong with it.  We as agents do NOT own these sellers, they are free to do what they want to do.

As far as what would I do if I had a buyer for the house before I got the listing, I would do the right thing and present my offer to the listing agent, geesh, after all there is enough business out there and splitting the deal with another agent is not going to send anyone to the poor house.

Oh I forgot one thing, Aaron Vaughn, please show me where this is a violation of the code of ethics, please.

Bryant - I'm in your boat, it's legal, ethical and I have no problem doing it.

Here it is:

"Aaron's Code Of Ethics"

1) It's a Violation.

That do it for you?

Do you really need to see it in print? If your gut tells you it's wrong, then don't do it. If you do do it (yes, I said "do do"), then don't complain when it happens to you.

Love Lenn's comment - haha. What comes to mind is an agent that lies about selling the listing, catching the seller on a bad day. Some sellers are desperate and don't stop to understand. But that's another subject.

While it may be technically ethical, I would find it uncomfortable, because as someone else said, the reason it is not selling probably has little to do with the agent and more to do with price or condition of the property or some impediment to it showing well. I mean, if you're not going to talk about the agent, how could you even begin to discuss the new list price and have that entire conversation? If they are unhappy with their agent, they most likely would have no qualms about trashing him or her and that would make me extremely uncomfortable. Why not just tell them to call you when the listing expires or watch for the expiration date and speak to them then?

I had a seller repeatedly ask for my feedback and each time I said, "the price needs to be lowered." She didn't listen to me until I actually listed it for her after all of the other listings expired and I finally sold it. But I would not have lept in there like superwoman when it was "the price." It's always the price.

BB the key is the owner has to make the contact.  The problem is, some agents miss this little detail.

BB - I go with richard on this one.  The seller has to initiate the contact. 

PS - Sorry I didn't get that list to you...I went and got busy!

Good for you!  I can't see anything wrong with that...in fact I am wondering if that isn't what a couple of my sellers did over the years...they sure did get their house back in MLS fast after they let the listing expire!  :o))))

Yes, BB is correct (here in FL) The seller must make the contact. That is the key. And as BB said no bad mouthing the current agent. Other than that, list away!

When I was a brand new agent I had an owner contact me about listing his house.  I freaked out when I found out it was already listed.  Of course I went to my broker for guidance.  She calmly explained to me exactly what you're saying here.  If the seller is initiating the contact, you are doing nothing wrong.

Thanks for this post, BB!  I was reminded of this very Article in my recent Ethics training.  And, a few weeks prior to the training, I was called by a seller, whose townhouse I had shown to one of my buyer 4 times.  His listing agreement was expiring and was exploring his next listing agent.  Not remembering this COE Article, I asked him to call me once his listing expired.  Thankfully, he did call back, and I was able to get his house sold in a pretty short amount of time.  Whew!  Next time, though...

Amazing what you find when you take the time to read the Code! Good post.

If you are the one losing the listing, at least try to get a buyer and you still get paid @ the end of day!

Bryant- I have no issue with it and we have done it many times. We also have come across a lot of sellers who don't even have a copy of their listing agreement. Katerina

Hi Bryant. I have not had that opportunity but if it was to arise and the seller contacted me... then I would consider it. However I do not walk that gray area of contacting the seller.

BB - I would pursue it s well, and have. As long as it is very clear the seller contacted you (voice mail, email are a great record) and you keep your notes about what happened and when, it seems that it is not a violation.

But is it a good business practice? Maybe not. Why not say to the seller to contact you as soon as the contract is ending so the whole thing is much more clear. And certainly someone could file a complaint and, depending who is on the Ethics Committer, could possibly win if not properly documented.

Jeff

This is business, dont let your feelings get hurt when you cant do the job.

This has come up some for me as some agents still don't want to handle short sales.

Multiple Listing!

Well I'll be damned--TLW was right (when ISN'T she?)!  The COE clearly states that this is okay--we all KNOW that WE cannot contact the seller or say anything derrogatory about their agent but, it is fully within their right to contact US and when that other agent's contract is terminated, it's anyone's job!

Food for thought--honestly, we've all listed properties that are priced too high and will not sell; I feel that we most likely welcome the other agent taking the expense of listing this property out of our budget. But, the truth of it is, that generally the listing agent that had the listing agreed to market the property at a price that was too high OR did little or nothing to market the property.  I don't generally know the agents whom I take the listings as their second or third agent but, if they won't let me assist them in setting a reasonable price, I don't want the listing anyway!

I recently had one that promised that if we didn't sell at his price after two weeks, he'd lower the price to the price that I recommended.  When that two weeks was up, he would not lower the price.  For two months, I updated him with his market absorption trends and I could tell he was getting a little frustrated with me and he finally terminated the contract, saying that he would sell when the market turned around.  One of our expired listing kings sought this couple out and convinced them to drop the price $50K.  I honestly did hope that it would sell for them so that they could move on but, unfortunately, they were 3 months late on that price and needed to be even lower at the time of the new listing and are still on the market.  I know the other agent that listed it and I have no hard feelings towards him at all--good for him to get the price lowered but, sad to see that the property still has not sold.

What is it about your posts that always elicit a comment that is long enough to be it's own POST?!

Have a fabulous Friday...

Fortunately and unfortunately, I guess, I have not been in this situation.  I have had a listing stolen from me while in the midst of moving my license from one broker to another - but that is a wholle other set of circumstances...

My thoughts is if it did happen to me, I would probably be relieved because if one of my clients felt the need to go elsewhere I can guarantee that I would not have felt right about the listing long before we got to the expiration date.  And letting the listing go would be the relief of a heavy burden off of my shoulders.

Power to anyone who gets these.

I think some people are confused. Of course a listing can expire. Then, it's fair game. But signing another contract while the listing is still in place is just wrong. The seller need to have the guts to cancel the listing. And many states don't allow post-dated contracts in many situations, so be careful. 

Seems that if the seller is contacting you and its dated after the other contract there is nothing wrong with it. Our 2 cents.

Based on the code, looks like you're fine if you listed after expiration of the other contract.  They initiated contact with you anyway, so I don't see where there would be an issue.  So my only question is...Is your sign (in the picture above) out after the expiration of the other agent's contract.  My guess is "yes", right?  I know stupid question, but it's early and I'm not awake yet.  :)

BTW, love the new pic of you and TLW.  :)

Yes, I know it's legal. 

But - and this is simply my own personal opinion; no matter which side of the situation I am on - there is still something about it that feels vaguely off to me - like listening to a piano that is slightly out of tune.

So if my office is the listing office and the seller says he is signing with XYZ when the listing expires, my inclination is to say:  "XYZ is a great agent.  Let's cancel our contract today."  (Let XYZ scramble to get his marketing in place two weeks earlier. )

If a seller approaches my office while still under a listing contract with XYZ, we'll talk, but in that situation my inclination is to say "Let's schedule an appointment to meet on October 1 (or whatever date the listing expires)  to sign papers."

Will we lose some business?  Maybe.  But at least I won't have to listen to that discordant piano music in my mind.   :-)

I like the new pix, too!  Very nice!

The fun part starts when the seller signs an extenson while you already have the new listing ready to go.  Then it get's a little interesting!

If I am contacted by a potential home owner, I will meet with them. At that time I listen to what they have to say, find out when it will expire or if they can withdraw it.

I tell them to call me when it does. If the current Realtor is not withdrawing it and they are frustrated, I just tell them to keep notifying them in writing.

I have written up a listing contract and post dated it, IF THEY know the day it will expire. If they are just unhappy and are going to withdraw then I just wait.

Good morning.

OK let me expand on this a little bit. As REALTORS(R) we cannot bad mouth our peers to get a listing nor can we interfere with an existing contract. BUT taking a post dated listing is doing none of these things. In fact it is nothing m,ore than taking a listing. If the current listing sells then our contract is null and void. If the current listing is canceled or expires then ours goes into effect.

Obviously you can't market the property until it is your listing.

I completely disagree that it's not the agents fault if the listing is canceled or expires. It's usually lack of communication or pricing. These are both the responsibility of the agent.

The seller wouldn't be calling me if he were happy with his agent. Normally it's because they have been abandoned.

Why in the world would we not be allowed to help this seller out? In fact it's my opinion that NOT helping them out would be wrong.

Now folks as in anything else it's all about the presentation. When I have done this in the past I ALWAYS pick up the phone and call the listing agent to let them know I have just met with their seller. Mostly they are relieved to be rid of the listing and can't wait to cancel the listing agreement.

I wrote this post to show you that meeting with a seller that has a current listing agreement is an option for you. And that you can feel OK about going over there, pitching your wares and taking the listing. If you are not comfortable doing this then don't. BUT don't call other's unethical that do. Because you are wrong.

Please check your State's laws to see about the legailities of this. Don't assume it's illegal because I betcha it's not. Interfering with a contract may be but this is NOT interfering with a contract.

Aaron your ethics are your ethics. I am not bound by them and neither are others. However you should certainly handle your business the way you feel comfortable.

Also, for anyone that thinks this is illegal come back and post the law stating that to be true. It will help us all.

Bryant,

Excellent Post ! 100% right on. The courtesy call to the current agent is what I would do as well.

Linda Metallo, Re/max Impact, Lockport, Il.

How about a post dated sales agreement to go with that post dated listing?

I've sold many houses before showing them, contingent upon inspection, why not get all the commission?

Its MLS rules not contract law that voids the protection period and every one I've seen talks about showings or property seen while listed. If you don't "show" the property why not a post dated sale?

Of course the earnest deposit will be a post dated check! (This may be the only legal prolbem.)

Bill

I am sitting right now on a listing that seller told me would be out of the MLS yesterday.  Not happened yet.  However, why NOT take the listing when the seller calls you?  Obviously they are not happy with what the other Realtor has done or not done. 

If it is price, then the other Realtor was not successful at making the client understand the price was off.  That is part of what make a listing agent successful these days: staging and pricing right. 

The other agent may be doing a disservice to the seller if they have not addressed price for the WHOLE YEAR it was on the market as an overpriced listing in a still declining market. No wonder the sellers move on. 

If it happens to me, it is because I was not successful in getting seller to price it right. 

I agree with Bryant that we are doing a diservice to the seller by NOT taking the listing to help him out in some cases.

You win some and lose some. I want property sold if if I am not doing the job, bring on the next guy although I have never run into this.

If you were to do this, I would certainly recommend that you have the Sellers sign a form that attests to the fact that they have solicited YOU! This practice is legal here in Kentucky and we have a form that the Seller must sign.

What a great idea!  Thanks for sharing.

At the end of the day, the customer/client decides who they want to do business with. It's their choice. If any of my listing clients is unhappy with my service, we terminate the contract and we both move on.

I thnk it would be rare for someone to say that they have never been contacted by an unhappy seller that's unhappy with their home sale and still under a listing agreement.  I always make it clear that I will be more than happy to talk to them further after their listing has expired but do take their information and follow up with them. 

Did not realize this was a mystery

When it comes to the homeowner contacting an agent the COE and state regulations are never in play.

But I am waitng to see someone low up and spout of some vague interpretation of a law that disputes this fact

No problem unless you hold off a buyer until you get the lisitng. Also I've seen reps postdate the signatures and witness on the future date - you can't witness a signature some time in the future

G

It shouldn't matter to this listing agent whether you list it the day after the listing expires or whether you post-date the listing - and isn't it all about doing what's best for the seller?

When I read  your article, I wanted to vomit.  No wonder many people don't like or trust realtors. 

If they contact you, nothing wrong with it!  I say go foor it.  I personal like the challenge off an expired listing.  I like examining the current listing and seeing what I can improve upon.  It isn't always price.  Better pics, virtual tour, syndicate it to more online sites ect. ect.

The comments saying "It's probably just priced too high" is WAY off base!

1. If the agent was good, he/she would be educating the sellers from Day 1 on the market trends.
2. Marketing DOES make a difference on which house sells!
3. We have the stats to prove it - we use our stats vs. the market averages and bring them with us on listng appointments - we have 38% less Days on Market, 2.4% higher List to Sales ratio, and a MUCH better track record of % of homes closed on.

So why would any agent out there think that price alone or "probably" is the reason it doesn't sell?!

Come on agents!

Different agents do VERY different types of marketing, advertising, incentives, programs, guaranteed sales, etc. and to tell a seller that it is probably just price could not only be wrong, it could DAMAGING to that seller to tell them that and continue to let them go down the road of mediocre marketing and mediocre results.

How about this - dig a little bit into what type of marketing the agent has done for that property.

I can normally do that in about 10 minutes, checking MLS, other sites, asking the seller - if I agree with them that not much has been done to market the property, and/or customer service has been poor, and/or they are not being educated on the market becuase the agent is too lazy or unwilling to send them weeekly comps, then yes, I would take the listing post-dated.

I can't beleive I hadn't thought of doing that! We had always asked them to call us when it expired, but this sounds like a better route if the above criteria seem promising.

Here's a twist...

What if the seller says "I don't want to wait for my listing to expire, how do I get out of the contract?"

Do you tell them how?

OUr mls has specific rules on post dated listings....we have to leave the original copies with the seller in the event that they change their minds prior to the inception date of the new contract...seems lame, but thats there rule...

I have been in this situation several times.  I have taken post dated listings and find nothing wrong with it. www.poconosite.com 

A seller usually has their house listed to high. When the other realtor takes the listing the seller lowers the price and magically the house sells. Over priced lising is why the house doesnt sell.

I would love to get one of these calls. With all sellers I have the contract ready to go. It will lierally be, Yes, sign here!

Thanks for the information. I have never had this happen to me and it never would- I sell their home! However, I like Todd MacMillan's comments as you can never have too much documentation. 

Mary Ann Chapman

I recently had this situation arise. The listing was held by the "rainmaker" in my company and she wasn't making it rain. She is however very established(30 plus years in our small community) and I felt that she would take it as an insult. In short i felt it was an act of self preservation to not take the listing. I don't know if she ever got wind of the situation but about 2 weeks later she turned over a $600k lead to me. Sometimes it's best to listen to the little voice in your head.

While the Code of ethics says it's legal for them to contact you before the listing expires and it's legal to discuss entering into contract upon expiration, the current listing agent is still in contract until the listing expires.  Check with any attorney and they will tell you that you can't post date a contract.  Chances are you are signing a standard listing with the future date of expiration as the start date.  If it smell like fish & looks like fish it's fish.  I hope many of you can sleep at night. 

Good review of the basics which allow us to contact a potential client about a listing.  I had a seller send me an email stating their interest for my file.

Dear  Bryant,

Great post and great new picture. I had a seller called me and stated the same thing. "Need new agent that can sell my house, not satisfied with current aget...........bla, bla, bla......." I know the current agent and I like her and I can not imagine that she is not doing her job. The questions is? Is it legal? Is it ethical? I think that the questions is.. Is it the right thing to do? We need to respect each other, wait till the listing expires, call the current agent and inform her that her seller has contacted me. At that point you should still wait for the listing to expire and then run or drive as fast as you can to secure the listing before someone else does.

Katina Hargrove

P.S.

Bring them a buyer before it expires...........

I get the cconcept, I get that it's not a violation.  There is no debate on that.

 However in general...just because something is not against the law or technically unethical does not mean you should do it. It does not make you a better agent than me because you work that way.  It makes you look like a jerk.  I mentioned this post to several agents and many agreed that it is a slimy way to work.  These types of actions only propagate the belief that agents are bottom feeders.  Sorry, but it's true.  Look up the Harris poll and see where our jobs place as far as respect goes. I am so incredibly tired of agents that are money sucking pigs who onlycare about themselves and making a quick buck.  You know why?  You make the rest of us look bad. I get the reason why you can do it, but at the end of the day, your reputation in this business with both consumers and agents, means the most.  Is it really worth it to ruin your reputation over one deal? I've seen agents like that come and go.  Personally, I'd rather take care of my clients and deal with my peers on a higher road. Fell free to pat yourselves on the back for being so awesome and sneaky.  You are the one who has to look in the mirror.  I have a better suggestion.  Try working above board and honest and see the type of client you attract. 

This post is NOT directed at the blogger. Just an observation of general attitude among some REALTORS these days who lack common sense and integrity that brings the rest of us down.  I shall now get off my soapbox and let someone else take the lead.  Have a great weekend :)

Hi Bryant,

I think you're breaking the law, and you're unethical. Not that I know anything about it, but I figured now you owe your wife $50. She deserves it, right?  ; )

How interesting it is to be able to justify ones actions when it condones that person achieving his/her goal.

Great comments all around. Not illegal and not unethical, but personally doesn't sit right with me. When a seller contact me, I do as others have mentioned and say good things about the existing agent (if I know them) and say when the listing expires feel free to contact me. It's about a couple of things for me.

1) REALTORS are my number one customers. I do care what they think of me and I think highly of most of them, too. With the market as it is, we do tend to know each other and I would let the current listing agent know what is going on. This assists the seller and the current listing agent.

2) It's not mine until it is mine as someone mentioned earlier. I don't choose to invest time and energy until the listing is mine. If the seller is contacting me, chances are he/she is contacting others.

If a seller is not happy with my services he/she knows they can cancel at anytime with no penalty.

I even call the former listing agent on an expired or withdrawn listing if I have a buyer interested in the home and it is recently off the market. I ask the agent if the seller is still interested in selling rather than contacting the seller directly. Maybe I'm crazy, but it works for me.

Here's what bothers me most about this whole thing...yes, it is ethical as long as the Seller makes the first contact.  But look at how many who responded either did not know it is ethical or who are making their own interpretation of the Code?  It really scares me that so many Realtors have no idea of what the COE says or means. There have been so many changes and additions to the Code in just the last few years because of the use of technology.  Is anyone paying attention?  The Code of Ethics is delivered every January as the centerfold of the NAR magazine.  Until then, you can get it at www.Realtor.org.  Please take the time to check it out.....

For those of you who are stating that this in unethical, are you forgetting that it's totally up to the Seller to determine who they'd like to list their property???? I actually agree with BB in that I wouldn't have a problem if another Realtor took a post dated LA for one of my listings. Why would I be???? This is a business and if I'm working with a client who doesn't feel that they're receiving a high level of customer service, then how egotistical could I be to refute their position??? At the end of the day, IT'S THE SELLER'S DECISION!!! As long as I don't contact them first, then it's fair play....Remember, this is a business. If you can't separate emotional factors from business decisions, then maybe you shouldn't be a business owner.

I like what Darrel and Cheryl (isn't that cute!) have to say.  Although we all "know" that it is unethical (forget the state's rules, look to the NAR Code of Conduct), to solicit another Realtor®'s listings, many agents do have a close referral network that lets them know when someone else's listing has gone sour.  It has happened to me and by the sounds of it, to many of you.  But I agree that if a client is not happy with your marketing efforts, you should let them "go free".  Why should you pour more money into a listing that isn't going to sell anyway.

When I get approached by someone currently under contract, I let them know that they also need to look inward - - why isn't the home selling?  Is it really because the other agent is doing a poor job, or are you, the seller, hindering their ability to sell the home?  Is the house properly staged and de-cluttered? Are you pricing ahead of the market or is the market chasing you?  Is the agent's marketing budget being wasted in newspaper ads?  How is the property being marketed on the Internet?  Did you agree to dual agency and is this an incentive for the agent to keep the listing in her "pocket?"

These are all questions that I would ask a potential listing client in any other type of discussion, and I haven't yet said what I could do to help them (i.e. no solicitation).  Hopefully, the customer will call me when the time is right - but I generally will shy away from taking listings (new, expired, yet to be canceled) unless I know that the seller is willing to work with me to get the home sold.  

With many parts of MA still showing lowabsorption rates (buyer's market), there are more people wanting to sell than there are buyers.  Part of this phenomenon is because of agents who can't break away from old habits of overpricing a home and listing it for what the seller wants because the house next door sold for $X.  Sellers today need to be educated that real estate is not about looking back - it's all forward looking and pricing to stay ahead of the competition.  Why do you think relocation appraisals look 90 to 120 days forward?  Quality Realtors® do the same when educating their clients. 

Good post - I've had this experience as well.  One of my newest listings is one where the seller clients had called me to discuss their listing that was active with another agent.  I did not initiate the call or the meeting and I certainly did not badmouth the other agent.  In fact, if at all possible I try to talk the agent up and encourage the seller to given a second chance. After all if they are not satisfied with the current agent who's to say I will satisfy them either!!  Anyway, after meeting with me they decided that when their listing expired (about 2 wks later) that they would like to list their home.  I have had it listed now for about 6 weeks, it has been shown 3 times and we recently adjusted our price somewhat.  The sellers are satisifed at this point and so am I!

Dear Bryant,

I am glad that there are agent like David Dorman and others who conduct business in a classy way. My comment on driving and walking as fast as you can to secure listing was meant for those who need listing desperately at all cost, wheather ethical, legal or the right thing to do. Also it is tacky to place your sign next to another while it is listed.

I agree as far as doing unto others.  But if the client is unhappy with their current realtor then its free game.  And if the client has contacted me thats even better.  In our office we are always telling the clients if they are not happy with us then fire us.  It is similar to somebody not renewing their contract and then list it with someone else.  I say go for it!  I wish that would happen to me actually! 

Postdating may not be unethical under the COE and may not be illegal (check your local laws), however as a REALTOR we are under obligation to arbitrate any disputes.  This basically means we will be subjected to the interpretation of the COE by those on the panel that are more likely than not going to find against you. 

While you may still file suit after that to counter any lack of judgement by the board... or file suit to avoid the board, you will still be found to be in violation of article 17. 

Personally i dont think those on the arbitration, grievance, ethics... etc committees should be the ones to judge what is legal and not legal given their limited knowledge or more likely their stubborness to adhere to real estate of yesteryear.  but that's another topic to be discussed. 

Do it more than most people think. Like Bryant said, I do not bad mouth the other agent or company, I just show them what I do and sign a contract. One difference is I do not post date, I add a clause that states the seller contacted me first... they have an existing contract and I am not obligated to market and they are not obligated to... It essentially functions as a post dated contract but signed now and enforcable the moment the other expires. 

Hey Phyllis Katz, the agent they shouldn't like or trust is the one that strings them along for 6 months blowing smoke up their you know what, instead of wearing a professional hat and telling them, if you want to sell the home here is what has to be done.

This it is all about who contacted who first. If you chase other people's listings then you are slimy.

When someone approaches me, I have an exact script I use every time. I say "first thing I have to tell you is that it is a violation of the Realtor Code of ethics for me to solicit you while you have a contract with another Realtor, So I need to make it clear with you right now that I am not soliciting you and in fact you are soliciting me, is that correct" they always respond yes. 

The most common case and Jamie's question is the one that creates the potential legal issue: we can't give advise about canceling a legally binding contract; that's practicing law and probably violates the Code of Ethics too.

We have an obligation to determine if someone we are talking to about potential services is under a written agreement with another Realtor for those services. If they are we cannot provide the same services concurrently and need to walk away. We can talk about other services without violating the COE (rental versus sale) though. And, as stated earlier, we can enter into an agreement to provide the same services that they are presently under contract in the future, as long as those services are after the prior agreement has ended.

Many listing agreements are conditionally cancellable and provide that if the property is taken off the market but is sold during the term of the agrrement, the Listing Broker gets paid. A Seller may be obligated to pay twice.

Over the years, we've been on all possible sides of this situation and have always erred on the side of caution. This is both legal and ethical in Florida but I'd use an abundance of caution and be sure that full disclosure is made.

I've had it go both ways especially in the flat fee MLS aspect of my business.  Some people want to list their home with me even though it is currently listed with someone else.  I just tell them to let me know when their listing expires and we can re-list it at that time, but if they want to list it before that then they need to talk to their listing agent.  Not much I can do before the fact.  Likewise, some people want to cancel their flat fee MLS listing and instead of upgrading with us, they want to list with someone that they know at a Big Box firm.

This has happened to me before as well, at least twice in the last 6 months. One of them had been listed with another company for 6 months with no activity to speak of. I took over the listing and within 40 days we had a contract that closed 30 days later. I now have a very happy past client.

What we cannot and should never do is approach a seller while their property is listed with another agent (that is against the rules). However, if the seller is the one initiating the contact/conversation and they are unhappy with their current realtor (for whatever reason), then my goal becomes to help them achieve their goals. I will meet with them and try to figure out why it is not working for them and explain to them how I work. If they choose to let me list the property, I do not post date the listing but I will have the papers ready for them to sign on the day their listing expires with the other agent or whenever they decide to terminate their current contract.

To me, this is not about bottom feeding at all. I respect the other realtors I work with but ultimately, our responsibilities and duties are not to other reators but to our clients. If a seller is not happy with their current realtor but you refuse to help them, what kind of impression are YOU making. that's what I want to know.

My two cents...

I consider myself to be in the business of relationships -

I would welcome the opportunity to help sellers move on with their lives, and if I am contacted by someone who is currently listed with another agent I would listen to their situation and explain my services and how I could help them after their current listing expires, but I will not put them on a post-dated listing agreement.  If at the end of the current listing period I am not contacted by the sellers I may follow it up with a phone call, or even a personal visit to see if they are willing to hire me. If they don't, then I will take that as a relationship not worth pursuing.  Unloyalty begets unloyalty. Most people would not sign post-dated marriage papers with aperson awaiting disposition of a divorse decree, how is signing a post-dated listing agreement different? Explain that to me! 

Is is legal, Yes! Is it ethical? well, we all know that like beauty, ethics is always in the eye of the beholder, and that's why we're witnessing so many threads of differing positions!  I stay on higher ground on this one. 

I think this is an awesome idea. I have held off speaking with potential clients because of the whole contract thing. Some folks want to wait to the end of the contract period because they feel for the agent or it is a friend. If you have them sign a post dated agreement they will feel obligated to follow through instead of the usual sticking with the same agent or taking the home off the market for a while then re-listing with the original agent.

I wouldn't do this its like those buyers using more than one agent and your showing if they are truly unhappy with that agent then cancel it seems like way to get bad Karma right or wrong it seems like the image you represent having two signs out there why not 3 or 4 why not if its legal?

Lots of things are legal does not mean you should do them

Wow, what a can of worms, if the Seller is out fishing for a new Realtor, you can bet I am going to take the bait.

YIKES!! Feeding frenzy. OK real quick

I do NOT place my sign on this property. The picture is my sign and the sign from my home inspector stating the property has been pre-inspected.

If I see "Our Code of Ethics says it's legal" again I'm going to scream. Our CoE does NOT state what is legal or not. Check your State laws

Taking a post dated listing has nothing to do with disrespecting your peers. It has everything to do with just taking a listing for future date.

A post dated listing agreement is like a "letter of intent" it is NOT a valid binding contract and therefore it is not an illegal contract.

Some of you are making this out to be way more complicated than it is.

Gelsa Malanga's comment is worth repeating(bolding is mine). It is EXACTLY why I wrote this post:

Here's what bothers me most about this whole thing...yes, it is ethical as long as the Seller makes the first contact.  But look at how many who responded either did not know it is ethical or who are making their own interpretation of the Code?  It really scares me that so many Realtors have no idea of what the COE says or means. There have been so many changes and additions to the Code in just the last few years because of the use of technology.  Is anyone paying attention?  The Code of Ethics is delivered every January as the centerfold of the NAR magazine.  Until then, you can get it at www.Realtor.org.  Please take the time to check it out.....

Basically whether you do this in your business or not you need to understand that it is OK according to our CoE. It's our JOBS to know this stuff. Buyers and sellers are counting on us to help them out.

Ok I'll be back

What wonderful information! Thank you!

Learned something new today.  Makes sense.  Thanks!

I only take listings for only 4 months and tell my clients upfront that if I cannot find a buyer in that time either:

•·      I can't sell their property

or

•·      They are unwilling to do so at the market price

I have never relisted one of my own expired clients and so far, I have been fortunate to get almost all of them sold. Clients don't always like the price but by carefully preparing a property and diligently marketing it an agent can say they brought the best price. If a client is unwilling to sell at market price I can help them no further and carrying a stale listing is not good for either me or the client.

I would have to say, if you would like the next chance at one of my listings I would have no problem with that. With our program of preparation and marketing, the only significant advantage you could offer one of my clients, in the sale of their home, would be to do better at convincing them of the need to price their home right.

There are many different personality types and selling a home can be an intense emotionally experience so I will accept that for one or more reasons a client and I may have reached an impasse in the pricing of their property. In that case, I think it would actually be better for the client to "get a second opinion" by going with another realtor.

My mission is helping clients achieve their goals not collecting listings that don't sell. I have never thought about it but maybe all listing agents could benefit from taking an oath not to relist a property. Hmmm, I wonder if such a pledge could be used in marketing.

Commenty #87 - "you can't post date a contract" - never heard that before. This is one to check the legal hot line. Very interesting post, Bryant.

Sharon

Bryant,

Glad to hear is not your sign on another listed property, thanks for clarifying it, had me worried there for a minute...........

I just recently had a seller call me while the property was listed. I did not know I could go ahead and fill out the paperwork. The listing just expired and she is listing with me. But if I had known and filled out the paperwork with post dates I don't think I would have put my sign up til it actually expired. I believe that would cause a lot of problems with the other agent.

Sheila Scruggs

Century21 Hendershot Realty

East Tennesse Real Estate

I have been a second agent lots of times, mostly expired, If the seller calls me, I will talk to them. get things ready and wait for the date. If the seller wants to try to get out of the current listing, that is their business. I have only been disappointed once, when a last minute buyer was found. However, I was glad for the seller.

Furthermore I have had it happen to me as the first agent. I even found a buyer for a previous listing. I believe oure job is to "sell" the property, not just list it. I don't think we have to get both sides. Nor do I hold a grudge if I lose a listing, either as the first or second Realtor.

Sometimes it is just lucky timing.

Wow BB, you certainly have a knack for posting about more controversial topics than anyone I have ever seen in the Rain! But that's a good thing, as it keeps everyone from becoming complacent and gets us to stop and think. What I don't get is why some agents are so vehemently against what you're saying. It's not unethical, it's not illegal (but check your state's laws if you have any doubt), and you never said that agents HAVE to do this, only that YOU do it. A lot of us have, us included, and have no problem sleeping at night or looking our peers in eyes. We usually wait until the current listing has expired before signing a new listing agreement, but that's just us. And we've had this happen to us, too, and feel no rancor towards the new listing agent. Good luck to them, and we hope they can sell it quickly. But some of the comments here, we just don't get. From someone wanting to vomit, to others calling you sleazy, sneaky, underhanded, unethical, and just downright criminal. If you don't agree with what Bryant is doing, just say so and leave out the name calling. Nobody said you have to do what he does, even if it is OK to do it that way. If your personal code prohibits you from conducting business that way, then just say so and move on. But don't shoot the messenger just because you personally think what he does is wrong, especially if it's not. As a recent AR post stated, "Can't we all just get along?".

Great post BB, keep 'em comin'!

I have had sellers contact me about taking over a listing and I ALWAYS tell them that I will be glad to speak with them about listing their home, but they need to contact their current agent and let them know why they want to end their contract.  Also, telling them that once they do to let me know so I can give the agent a courtesy call.

What is "ethical" and "legal" is not always following the Golden Rule.  My preference would be to have sellers, buyers and other realtors know that I'm not disecting to find my own definition and justification. 

Expireds are great as long as you can get a $ reduction along with the listing agreement. What's the point of listing another agent's tired old price?
No ethical dilema here as long as client solicits broker. Sometimes it feels good when a stubbornly priced listing walks away. I always go above and beyond so no hard feelings.
Sellers need to hear the truth from more than one agent about price in this market so when you lose a listing, go get someone else's expired...with a $ reduction.

I love Howard's comment about collecting listings, what a waste of time.

I totally agree Broker Bryant and also would not hesitate to take the listing....

Wow. I never thought of it that way, Bryant. And, you are absolutely correct..it has to be the seller's initiation of the contact, not ours.

I have several colleagues at my job who have let me know that their houses were on the market. When they expire, they are mine to list...and they have already indicated to me that I would be their next option should their listings expire.

You were cool with all this- EXCEPT hanging the sign. Not sure if it could NOT be construed as tortious interference during the listing period. Even if not, it's tacky. I've never had this happen- cause I get mine sold! Of course, I'm the WIZARD baby! (Ain't I humble?)

Jeff Burnham, Rosen & Co. West, Las Vegas NV

Is this deja vu or has this post been submitted before?

You are exactly right. As long as the customer contacts you and asks you to talk about listing or even have them sign a listing prior to there current listing expiring there is nothing wrong with it. As you say however you cannot solicit or initiate a conversation with someone who has their property listed with another agent.

In Colorado the listing contracts have a paragraph in them that asks if the seller is currently listed with another company.

This happens frequently with relocation companies.  Also, as we all know, in some markets there is so much inventory that a house does not sell even when priced very aggressively.  Sellers understandably become anxious if there need to sell quickly and, thus, reach out to find ways to sell their house.  All that being said, in small communities it is best to initiate communication with the previous listing agent once the 'transfer' has occurred to explain what transpired and keep relationships intact....burned bridges are hard to rebuild! 

Interesting post today.  I've seen it done but rarely here in seacoast NH....

Patricia Aulson/portsmouth nh homes

While there are some issues depending on your state regarding post dating of the contract, otherwise there is no issue with this, legally, or ethically... as far as relationship building and reputation among peers are concerned, that is an entirely other matter...

My concern would be the overlap, if any... resulting in the seller paying two commissions for one sale. Be careful, and whether your reputation suffers or not, you wont go to jail.

Of course its legal when you didn't make them cancel their current listing. The issue is, a fellow agent in my office got fussed at by our broker about this. A couple called her and wanted to use her when they relisted their house. She did a cma on the property and sent it to them. Well, they showed the listing agent the cma which has her name on it. She called my broker about it.  My friend was a little upset at the broker because she didn't listen to how it all went down-They called her. Maybe my broker needs become more aware of this.

I was also told in ethics class that if you call the current listing agent and ask for thier clients contact info and they don't give it to you, you have the right to contact the seller directly to list their property when it expires. No one in their right mind should want to do that even though it is ethical. That listing agent will NEVER forget you. I think the seller calling me is a cry for assistance once their current listing has expired. 

OK ONE MORE TIME. I DO NOT PLACE A SIGN IN THE YARD. NEVER EVEN MENTIONED A SIGN. PLEASE LOOK AT THE PICTURE. IT IS A HOME INSPECTOR SIGN.

OK sorry about that. I hate to see an article head that far off topic.

Back to work.

I am new to Real Estate. And I recently took the State required license law classes. I did not understand then nor now why there is a law protecting current listings from being solicited. Isn't the purpose of license law to protect the consumer? What is unethical about telling a consumer, "your agent is asleep at the wheel"? I believe it is unethical NOT to tell a consumer your agent is part time, technologically out dated, and NEVER answers their phone.

p.s. I do not break my State's license law, I only ask for someone to shed light on this subject for me. Also, this post may make me unpopular and I even hesitate hitting the "submit comment" button, but here it goes....

Yes in our state it is legal, as long as the seller contacts you first, I see nothing wrong with it, but I have not done this yet---Bart

Yes in our state it is legal, as long as the seller contacts you first, I see nothing wrong with it, but I have not done this yet---Bart

I'm looking at this scenario from a different angle... A seller that would not yet tell his agent what the problem is before looking for another agent; hmmm, do I want to work for that kind of person?

Probably not. What comes around, goes around; it's not a matter of ethics as much as it is a matter of the standards you set on how you run your business.

Glenn, Not soliciting another REALTORS(R) listing is part of our CoE. It is not law in Florida and I doubt it is law in your state either. It's my opinion that a bulk of our CoE is to protect REALTOR(S) NOT the public.

Lisa, In almost all cases it's the agent that has quit communicating with the seller. I have been listing expired listings for 15 years. The complaints are in order:

1. Never hear from our agent
2. Can't reach our agent
3. Put up a sign and never saw them again.

Why should this seller have to sit there and wait for a contract to expire before they start interviewing and even hiring another agent? Is the best anyone can come up with "to protect our reputation"?

I love working with REALTOR(S). Teaching REALTORS(R). Helping REALTOR(S). Cooperating with REALTORS(R). BUT.....I love looking out for the public far more.

Thanks for quoting the section of the Code of Ethics.  This should be taught in continuing education Ethics class (yes, you should stay awake during these classes).   It is ethical but please...dont try and change the meaning of the rule.    The initial contact MUST be initiated by the seller!  I would also suggest once you are at the property you check for yourself the listing agreement and make sure it is expiring.  Sellers are sometimes confused on when a listing expires, so check it out with your own eyes.  :)

Best wishes,

Theresa Molina, CRS, ABR, ASP

http://www.MolinaHomeTeam.com

I would hope that I had good enough communication with the seller to know that the listing would not be extended at the end and I would DEFINITELY ask to make a referral to another agent.  After all of my hard work, why wouldn't I want to make some of my marketing money back?     I have a MasterMinds group here in Santa Barbara  (top agents from different companies) and we help each other out in this way.  We are all in this together and need to work daily with that in mind.

Kathleen Barnato CRS   Santa Barbara/Montecito, CA Prudential CA Realty

Great idea but ... our board does allow post dated listing under any circumstance.

Great idea but ... our board does not allow post dated listing under any circumstance.

Bryant:  This hasn't happened to me either.  However, I also know when a situation is falling apart.  I don't make people stay in business with me that don't want to be in business with me.   This does come up every time I take an ethics class.  As long as the seller is contacting you, there is nothing wrong with this practice.  I also found out during the same discussion that is perfectly ethical to call a seller who is in an active lisitng if you have already called the listing agent and asked when the listing expires.  If the agent doesn't answer, you can call the seller and ask them. 

Interesting discussion.  I will discuss the property if an owner approaches me but I wait until the listing expires before I do any agreements.  I am not saying agents are wrong for proceeding, but I personally would rather wait.

In another situation I have listed properties that were previously withdrawn, not expired and in that case I have called the previous broker to be sure that there was no longer any obligation between the owner and the previous broker.

Hey, let's go sell some property.

I say to the listed homeowner who contacts me:  I certainly understand your frustration, it can be stressful to sell a home.  It would certainly be an honor to work for you and I very much appreciate your call.  You need to have a discussion with your agent about the marketing of your property, I know your agent and have worked with them in the past, and I hope you work things out with them. You have a lovely home and I really want you to have success in your sale.  Please call me if your relationship with your agent changes or your listing expires.  

Like Emily said: I live in a small town. 

I don't purposely step on other Realtors toes, and I don't post date agreements.  Those are my ethics.   

I've had it happen to one of my listings once. I didn't have hard feelings. The seller wouldn't listen to my advice on price reduction. The agent that received the listing still has it for sale 8 months later. wow. I have also taken some listings post dated myself. You win some you lose some!

David Dorman (Post #90);

So well stated! Thanks for reminding everyone to keep things above reproach. We owe it to our clients as well as other Realtors to stick to the highest standards possible.

In British Columbia the Rules of Cooperation and Realtor Code have been interpreted, and generally understood and enforced for many years as contact can not be made with a person who is under contract with another Brokerage until 12:01AM the day after the expiration of the listing on the grounds that it is unethical. 

I have another business which enters into contracts for periods of up to 5 years with clients, salesmen in that industry routinely approach clients to have them enter into post-dated agreements upon expiration of their current contracts with other service providers.

I don't understand why Real Estate should be any different, it is the consumers choice to change or not and as you say "What you can't do is try to convince them to cancel their existing agreement or bad mouth their current Realtor."

Unfortuantely in our rush to regulate ourselves here in B.C. this has been lost.

Rule 16.6 in our Standards of Practice clearly spells it out.

But hopefully the clients would call the listing agent first to see what can be done as a team effort to get the home sold.

I would not have a problem doing this.  I would not initiate the contact. 

Let me see if I understand this...if they contact you, and you didn't contact them it is OK as long as you don't speak ill of the current agent.

But that is not what the COE says:

• When REALTORS^® are contacted by the client of another REALTOR^® regarding the creation of an exclusive relationship to provide the same type of service, and REALTORS^® have not directly or indirectly initiated such discussions, they may discuss the terms upon which they might enter into a future agreement or, alternatively, may enter into an agreement which becomes effective upon expiration of any existing exclusive agreement. (Amended 1/98)

How did this potential client get your name?

• Just Sold Post Card?
• Just Listed Post Card?
• Newsletter
• Blog
• Website
• Referral
• Billboard
• ESP

Other than ESP, it would seem that you may have contacted them directly or indirectly. Forget the disclaimer about "disregard this postcard etc." So, if you are setting in their kitchen talking about another agent's contract everyone has disregarded how the contact was made. While you may convince COE hearing that you did not violate the COE, I'm not sure a jury will buy it.

How about the legal aspects of what you have done. Hopefully, you and your client are on the same page on this one...

Question to Agent Bryant (among many): Did you tell your "new" client that they could sign a new listing contract with you while the other agent's contract was in full force and effect?

Question to Agent Bryant: Can you explain, in simple terms, what Tortuous Interference in a contract is?

Question to Agent Bryant: I have a copy of your ActiveRain post covering the subject about listing homes that are already listed...where agent Bryant did you receive your law degree and can you give me the case law that affirms your position?

Question to your "new" Client:  What made you call agent Bryant?

Question to your "new" Client:  What did you tell agent Bryant about your then current agent?

Question to your "new" Client:  How did agent Bryant respond to your comments?

Question to your "new" Client:  Did agent Bryant say he could do a better job for you?

Question to your "new" Client:  Did agent Bryant tell you that it was OK for you to sign a post dated contact with him?

Question to your "new" Client:  Did agent Bryant sound like he knew legally what he was talking about when he explained it was OK for you to sign the contract with him?

So...that was the brick through your window...here is my note on the brick:

1. Ask the person how they got your name?
2. Was it directly or indirectly gotten?
3. Meet with the potential client and explain they have a contract.
4. Tell them you really can't discuss listing their home unless they have been released from their current contract.
5. Determine, even if released, do you want them as a client.
6. Ask them if they have discussed the situation with their current agent.
7. Ask them if you can speak with their agent
8. Talk with the agent, but tell agent that you explained to them that they were still under contract to his or her current broker and you could not talk with them about the current contract.
9. If listing is worth having, offer a referral to current agent (careful here)
10. Get any release in writing from broker...not the agent
11. Be professional at all times in dealing with everyone currently involved and know what "Tortiuous Interference" is. (see below for our state)

One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract is subject to liability to the other for pecuniary loss resulting to the other from the failure of the third person to perform the contract.

To prevail on a claim alleging tortious interference with contract, you must show all of the following:

• the existence of a contract
• defendant's  knowledge that contract existed
• defendant wrongdoer's intentional interference and procurement of breach of contract
• defendant wrongdoer's lack of justification for his actions
• damages resulting from contract breach

 The contract interfered with can be expressed or implied.  It does not have to be a written agreement.

GLTA

This is an interesting subject.  I see merit to both sides of the debate about the ethical accepatibilty.  I agree with several above who commented about the price issue.  I have found that any house will sell for the "right" price, no matter what condition it is in.  If a house is not selling or getting showings, it is usually overpriced for what it is.  To me that is an issue the listing agent should be on top of.  If a person is not getting showings, because the house is overpriced, the listing agent has a responsibility to the seller to show them what is happening & why, & what needs to be done to sell the house.  If the listing agent doesn't do that, the seller may have a right to be upset & may have a right to cancell the listing.  It's too bad most people don't realize this. 

 As a agent being called in as in the senario above, I'd be asking, why is this house overpriced?  Is the listing agent not good at pricing, did they overprice it to get the listing in the 1st place, are the people unreasonable about the price?  I'd be very carefull about giving them a 2nd opinion of selling price in this senario, because they might just be trying to get a 2nd opinion of value prior to a price reduction.  Then reduce the price with the other agent & sell it before I got a chance. I think I'd take the approach mentioned above to basically tell them that I know exactly why their house is not selling, but defer talking too much about that until their current listing is expired or cancelled. I hate it when people try to use a agent for valuable information, only to use that info with another agent.

Hmmm... I let my license go a few years ago now, and since the Idaho rules change every year, I don't know if that would be considered legal here or not.

In the past, you could end up in front of the board of ethics just for talking to another agent's client. It was called interfering with a client relationship.

The more I read Active Rain and follow the problems you agents face daily, the more thankful I am that I spend my days writing marketing copy instead of dealing with the buying and selling public.

Marte Cliff, Copywriter
www.copybymarte.com

Carol & Vince Ciroli (EXIT One Realty) Great comment!! I'll be back to respond when time allows.

I see this as a no brainer.  It would be bad to be on the recieving end, but it will and does happen.  Face it, there are many sub-par Realtors out there.  Look through the MLS.  There are listings with no pictures, only one terrible picture, no description of the home, etc.  If it were my home for sale and the Realtor only put up one picture and no description, I would be agent shopping the next day.

Don't get me wrong, most Realtors try their best to sell a property, but don't be offended if you aren't doing your job and your seller looks elsewhere.

Just remember through all this that the listing belongs to the AGENCY.  If I get a call like this I recommend the Seller contact the listing agency broker to discuss firing the agency before I'll write a new listing.  If that broker can salvage the listing so be it.  If it still does not sell and the Seller wants me to list it once the listing expires, then I'll consider it after reviewing everything.   Does this make sense to you guys/gals?

This subject is very interesting, it really makes you think

It is about doing our job and doing it well.  Customer Service sells and that is why people are jumping ship!  They see or hear about other RE companies doing and offering more and they want it!  Especially in these times!!!  Buck up peeps - instant oriented societies need immediate results!

I'll take them like that all day long. As said in earlier posts, the seller can line up an agent for when the listing expires. This can also put the brakes on for the current listing agent coming to the seller a day before the expiration and says, "extend it with me because I have a buyer tht is thinking about writing an offer in the next week".

It would not make me mad if it happened to me. It hasn't so far. I take care of my sellers, so it is unlikely that it ever will.

Bryant...you are one of the few I really follow on AR, I don't like to make too many negative comments without suggestions. My fear is that some will not fully understand where the line is and say or do the wrong thing and get themselves and their broker in trouble.

I know that an experienced and knowledgeable agent will be careful in how they approach such a situation and keep accurate records.

I have always liked your aggressive style but like a gun...in the hands of the wrong person it can be dangerous.

Vince

In my area Seller's are desprate to sell, most area sales are short sales or REO's. I've taken a post dated listing several times and had Seller's call to ask advice , after I showed their peoperty, sometimes resulting in a listing down the road and sometimes resulting in a list price reduction for the current agent. Our cocern first and formost should be to help the client , sometimes we can help ourselves in the process.

Bryant

As a realtor, I have taken listings just as you describe and I have lost listings in the same manner. As a Homebuilder I have changed agents in the same way...it's just business.

BB,

Great pix of you and TLW!!!

I,too, take the Listing!

I'm here to serve and that's what I do!!!

Kathy Opatka

I fall on TBLBW's side on this one.

As long as you did not initiate the contact, I have no problem with taking the listing. 

I don't agree with those who've said "it's not the agent's fault, it's likely price".  If the agent hasn't yet been able to convince a mis-priced listing to price correctly, then it IS the agent's fault.

The code of ethics, as Carol & Vince were kind enough to point out does allow us to disuss terms and enter into a future agreement, or a 'post-dated' agreement with the inquirer.

When REALTORS^® are contacted by the client of another REALTOR^® regarding the creation of an exclusive relationship to provide the same type of service, and REALTORS^® have not directly or indirectly initiated such discussions,
they may discuss the terms upon which they might enter into a future
agreement or, alternatively, may enter into an agreement which becomes
effective upon expiration of any existing exclusive agreement. (Amended
1/98)

The seller is already disenchanted with their Realtor, and will be changing agents one way or the other.  They are asking for your assistance, and it is legal and ethical to offer it.  I do not need a law degree to know that I am not involved in Tortiuous Interference.  We are not asking the seller to "breach" the contract, they are merely allowing it to lapse.  In fact we are not asking at all... the client is making the request.

It is legal.   It's ethical.   and not the least bit sleezy, or slimey.

Somehow those of you who feel it's slimey seem to be saying that the only option that the seller has it to wait until the contract is over, before they should be allowed to talk to any other agent, to get their ducks in a row so that they can be ready to hit the ground running once the initial contract has expired.  Now forcing a seller to put their sale on hold, just so some Realtor's feelings don't get hurt... now THAT would be sleezy and slimey.

It's not about US.  it's about what the client wants.

There is nothing wrong with taking a listing provided that the home owner initiated the contact. I just wonder how many times a listing gets taken and it is because the realtor advertised to the home owner before the listing agreement had expired.

Alan May, Now that's a comment I can get my head around!! Not sure why folks feel I have to be doing something under handed to get a post dated listing.

Alan and Vince pretty much said covered anything I could have thrown into the fray.

Vince, No worries as all of us know TLW carries the weapons at the Bryant compound.

I don't see the controversy. 

Baseball players sign contracts over the winter. They don't play ball until April. 

You don't post date the signatures. The simply agree upon the starting date, like any other contract. 

Bryant:

I've taken post-dated listings and followed the letter of the law.  I have on occasion let the current listng agent know when my listng takes effect so that we have a smooth transition on lockboxes and signs. 

I haven't taken a postdated listing. Don't see a reason to do it unless, for some reason, I felt that the sellers were so unstable in their commitment to me that I would need to lock it down. And even then, why would I want to work with a wishy / washy seller?

But sellers have called who wanted to cancel their existing listing and list with me. I tell them to call me back when the listing is withdrawn from MLS because I don't wish to be placed in the middle of a "he said, she said" situation.

Besides, I don't hold a listing as a gun to the seller's head. If a seller wanted to cancel, I would cancel the listing.

I had a situation where I put a home into TOM status (temporarily off the market) because after listing it, the seller decided she wanted to have the home professionally cleaned. Imagine my shock when I walked into an office meeting a few days later to find my listing on tour, listed by an agent at one of our other offices. I don't know how she thought she could put it into MLS because she could not. She didn't have the professional courtesy to even call me.

I called her and offered to withdraw my listing from MLS in exchange for a referral fee, but she refused. I let it go. Because inevitably one day she and I will cross paths, and she will want something from me.

No listing in this business is worth alienating your associates over or affecting your reptuation.

Something new I learned today and you know what, if the other agent did not sell the property and the seller is looking for another agent, why not go and take the listing. Sometimes it is the 2nd or 3rd agent that actually sells the home. Of course, depending on the circumstances, price, relationship, or the market you just never know what you are in for. Just be honest and straight forward as folks do appreciate that.

Deb

This is what I call very aggressive action.  It tends to create hard feelings with other Realtors, especially the current listing agent.  If this does not bother you, go for it. There is nothing illegal about it.

Akron, OH

I always thought you had to wait until it expired so, thanks for the info! When a seller in this situation has contacted me in the past I've just scheduled my appointment with them for the day of expiration. Thanks!

If I don't do it, someone else is going to!  That is the hard truth about real estate in every area of the industry.  As long as we are following the ethical parameters laid out for us by our state/country, we should be moving heaven and earth to get these homes sold (not sitting there with a sign in the yard)! 

Also, regarding the reason a home might NOT sell with the first agent: If I am that first agent, and it is overpriced it is still MY fault it is not sold.  I should be brushing up on my ability to communicate the importance of pricing in today's market or I should not be listing the home in the first place (if the seller is completely unwilling to be competative in the market place)!  They may also seek another Realtor's help if I am not communicating regularly (this solves most problems with sellers, as most of them just want us to communicate with them and continue to educate them, 'til we have a contract in hand)-still MY responsibility.

Point being, if someone else ends up with my listing (never!), I guess I can only look at ME and fix that, instead of wasting the day complaining about how some other Realtor "stole" my sellers!

I would take the listing becuase I believe I can get that house sold.....  But, I would know that the current agent might be able to to put together a plausible claim for intereference with prospective economic advantage.

the current agent might be able to to put together a plausible claim for intereference with prospective economic advantage.
~~~~~~~~~
nonsense.  All you did was allow their contract to expire.

Loacal style wouldn't do it, mainland style would. It can happen. Aloha Jeff

Who told you doing this is perfectly legal? Just so you know, the realtor code of ethics has nothing to do with if something is legal or not, it is an ethics guide which usually just runs in parallel with many federal and local laws.

Note how code of ethics specifically talks about a REALTOR doing this or that, what about real estate agents who are NOT REALTORS? You do know there are many out there, usually commercial brokers though.

ASK YOUR BROKERS BEFORE you even "THINK" about soliciting the business of other brokers, especially when already listed. This is a big NO...NO... perhaps some people in here need a refresher of the code of ethics training, watch the video, it's available online free.

I am a real estate broker in New Jersey and would squash this kind of strategy thinking in a heartbeat. This is real estate 101 stuff covered in the initial licensing course. You cannot begin soliciting business of already listed properties until the day AFTER it expires. This was specifically and thouroughly gone over in my classes anyway.

Also it should be noted... even though it is a practice many agents do, post dating contracts in not a good habit to get involved in. When you sign a contract you are affirming that it is being signed on the date which is on that contract, by post dating it you are basically lying.

When people start advising others how this and that is ethical yet most people DO NOT do what is being told is okay should lead you to take extreme caution and use due dilligence BEFORE going any further.

If you really wanted to see if this is okay, call your local realtor association or your states real estate commission and ask them if this senario is okay. After all your not doing anything wrong correct? Then you should having nothing to hide or be worried about.

As a broker / owner if I am not sure about something I call the real estate commission to ask and find out for sure before going any further. Many times I notice the people at the local office of the realtor association may not have a clue unless you by chance get the right person who picks up the phone which deals in these issues. (They usually are not the ones answering the phones)

These are my words of caution and advice, anyone who puts me down for saying them is foolish and their advice probably should not be followed verbatim. BE DILLIGENT, it is after all YOU AND YOUR BROKERS LICENSES at risk and the ones who will be fined "IF" this practice is not as ethical and legal as your being told.

I'm not advising any of you to do anything but do some research and ask a few questions to the RIGHT people BEFORE doing something you question the legality or ethics of. (RED FLAG) Your first instinct is usually the best.

You should read the ENTIRE code and not pick and choose which pieces you wish to obey that would benefit you best.

Just a thought... If you have to resort to stalking another agents clients to get their listing before it's even available you need a new business plan.

Standard of Practice 16-8

The fact that an exclusive agreement has been entered into with a REALTOR® shall not preclude or inhibit any other REALTOR® from entering into a similar agreement after the expiration of the prior agreement. (Amended 1/98)

Here is a link to the REALTOR code of ethics
May Require Realtor.org login

• Written Document:
  http://www.realtor.org/MemPolWeb.nsf/pages/COde#Duties%20to%20Clients%20and%20Customers
• Code of Ethics Video:
  http://www.realtor.org/law_and_policy/code_of_ethics/code_of_ethics

I serve on the grievance committee for my local board of Realtors and I can tell you what you've described is not against the NAR Code of Ethics. The only time it would not be fine is if you solicited the listing by sending mailers or making phone calls to the soon-to-be-expired seller in an attempt to have them call you. If the seller calls youon their own, you are good to go and you can sign all paper work before the other listing expires, but the listing agreement date has to start after the expiration of the current listing. It happens all the time, that's why it's so important to keep a good level of communication with your seller. Please note that just because a listing has expired doesn't necessarily mean the agent couldn't get it done, perhaps they didn't understand the importance of the absorption rate and took the listing for too short of a time frame, often the case in the current market.

Wow...

That's the easiest fifty bucks I've ever made :)

TLW...ROAR!

To add to my comment, I would never post my sign next to another companies sign. The right thing to do would be to call the other agent or broker and make them aware the sellers called you and you have relisted the property. You might make peace by telling them you'll leave their sign somewhere for them so they don't get any grief for leaving a sign up on an expired property. Never, never post your sign before your listing contract date is in effect or that might land you with a code violation.

I've done this twice in my career as well and you are correct, you have done nothing wrong. Now, I have had people call me and change the contract to an earlier date after without my knowledge the canceled the listing because of the falling out with the first agent when they told them they were going to re-list with them.

People, people, people...

If you are a Realtor, you are a member of NAR. Likely you are also a member of a state board and a local board.

Read ALL THREE codes of ethics before you 'post date' a listing.'

Locally if a client calls me I can answer questions, provide information in general terms. I CANNOT solicit the listing even if they call. I can ask when it expires and suggest they call me then.

I can call the listing agent and ask the listing agent when the listing expires if they chose not to put it in the mls. If the listing agent won't tell me the expire date, or the type of listing contract ect, then (according to my local boards code of ethics which I just reviewed) I can call the owner and get the information from them. I can even under these situations (according to my local boards code of ethics) discuss a future listing with them. I CANNOT encourage them to cancel their contract.

My poin... Read all three codes of ethics.

However, another consideration is this...

What would your e&o insurance company think about this?

Personally I would only let the seller know I would be happy to help once the current contract expired.

JMO

David G

PLEASE, PLEASE, PLEASE!!!!

KNOW YOUR STATE LAW FIRST BEFORE YOU DO THIS.  Standards of Practices 16-4, 16-5, 16-6 are all in violation of Kentucky statues.

State law supercedes the Code of Ethics.

The Kentucky Revised Statutes read as follows:

324.150 Investigation of licensee – Suspension or revocation of license

(4) The commission shall impose sanctions set out in subsection (1) of this section against a licensee for:

(p) Negotiating or attempting to negotiate the sale, exchange, lease, or rental of real property, or attempting to obtain a brokerage agreement with a consumer knowing that the consumer had a written outstanding contract granting exclusive agency with another real estate broker.

Besides, I know the COE says you can do it if they initiate the contact, but the prelude also says it is based on the Golden Rule.  Think about this scenario:

You are the listing agent on a piece of property.  Seller has been very hard to deal with and you have worked hard on marketing the property.  Seller just doesn't understand that although you have not shown the house yourself the majority of the time that the main part of your job is to market it to get it SOLD and make sure other offices show it too.  You get an offer the day before the listing runs out only to find someone else has it listed starting at midnight.  Seller counters, but buyer won't answer that night.  Is that fair??  Who has earned the selling side of the commission??  Wouldn't make me a happy camper.

I work in a small town.  I will be working with that agent again.....more than likely within a year. For the average agent 75% of their business comes by ANOTHER Realtor.  Why make an enemy over one listing???   

I "took over" a listing just a month ago. And I'm working with an agent in Austin to possibly take over another one next month. Sometimes they just don't work out, and I am happy to help the sellers try something different. That is, as long as their real reason for changing agents is their dissatisfaction with the job their current one is doing.

Cheers,

Robin

I had 2 listings that I sold that were previously listed with another agents. Sellers were very unhappy and wanted to relist with me. The seller took care of the cancellation with the first broker but I didn't list it prior to the cancellation of the first one. It was sad because the other agent tried to renegotiate with the seller and basically start doing the work for them as soon as she got the message. Seller said, there were no showing, no flyers, no agent update with the seller. Can you imagine how the sellers would feel if agent take a listing and then disappear?

Charita King

562-276-8681

Victor, Slow down and read the post. This post is about options once a seller CONTACTS you. It has nothing to do with soliciting or stalking another agents listings. By the way I am a Broker but certainly always recommend others check with theirs. A post dated listing agreement is signed and dated with a current date. The post date is the day in the future when the contract will go into effect. This date is of course AFTER the other contract expires. I agree with most of what you have written even though very little of it has any thing to do with this post.

BB: I have not actually taken a post dated listing on paper, however, I have had sellers to contact me, especially at open houses and tell me that they were not happy with their current representation and wished to list with me, after their listing expired. After the listing expires, I go and list the house. I do, however think that you have a great idea about taking the listing ~ post dated ~. Really like the new photo.

Why do agents hang on so tight to the listings?   Come on, if I can not do the job and the seller wants to go in another direction, I WILL LET THEM GO.  If they don't like the job I am doing and start talking to another agent while I have the listing, so be it. 

Sellers talk to agents everyday and tell them that when the listing expires they will re-list with the new agent.  Bryant is just getting the listing signed early and it DOES NOT go into effect until the other expires. 

Earleene, Thansk for posting  the Kentucky law. State law ALWAYS trumps the CoE. Good for you for doing the research and posting the law instead of just saying it's illegal. It took 183 comments for someone to back up their stance with the law. Well done.

Talk about opening up a can of worms!  Good blog.  I got a call 2.5 months agao from a seller and I met her at the house she was trying to sell.  After I gave her my speel, she informed me that she had already listed it for $500 with some limited brokerage firm.  She asked me to call her in a few weeks, which I did and we talk some more.  She had not had 1 showing yet!

2 days ago she called me and told me she wanted to list with me because the listing was set to expire in 10 days.  I have arranged to meet with her next week and I will list the propery, post dated a few days later after the current listing expires.  I see nothing illegal, or unethical about this in any way, as I did not solicit her at all. 

Perfect example Jirius.

Bryant, 

I always go at least once a year to a law class taught by Virginia Lawson who is the leading Real estate lawyer in the state.  She brings this particular issue up every year.  I am very active in the state association and a trustee on the Kentucky Real Estate Education Foundation.  

My philosophy is if you have to reason over and over with yourself to make it right, you shouldn't be doing anyway regardless of whether it is ethical or legal.

I'd take the listing and post date it with no hesitation.  Only in real estate is there a no compete clause after a listing is taken.  Makes no sense to me as I would not be worried about other agents taking my listings.  However, I would be worried if I was an agent with cars in the primary photo or no public comments in the MLS, etc.  Is there another business that is as protectionist as ours.  I always thought the client came first.  So if we see someone receiving bad service, we are just to turn our backs.  Maybe if this rule was changed then we could weed out those that do our proffession a diservice and get back to the client comes first.  You have little to fear about losing a listing if you are doing the job right. Until then, stick to the ethics as they were intended.

Broker Bryant, I have read each comment on this post. I usually don't do that. I agree with both the COE and personal core values are not infringed upon. This is a great post. Some readers need to keep it between the trees.

Broker Bryant, I have read each comment on this post. I usually don't do that. I agree with both the COE and personal core values are not infringed upon. This is a great post. Some readers need to keep it between the trees.

Ok...I want to take a few minutes to respond to Carol and Vince's comment #150.

You stated:

"But that is not what the COE says:

• When REALTORS^® are contacted by the client of another REALTOR^® regarding the creation of an exclusive relationship to provide the same type of service, and REALTORS^® have not directly or indirectly initiated such discussions, they may discuss the terms upon which they might enter into a future agreement or, alternatively, may enter into an agreement which becomes effective upon expiration of any existing exclusive agreement. (Amended 1/98)

How did this potential client get your name?

• Just Sold Post Card?
• Just Listed Post Card?
• Newsletter
• Blog
• Website
• Referral
• Billboard
• ESP

Other than ESP, it would seem that you may have contacted them directly or indirectly. Forget the disclaimer about "disregard this postcard etc." So, if you are setting in their kitchen talking about another agent's contract everyone has disregarded how the contact was made."

My response to this is that you are reading the code wrong. The part of the CoE you bolded is about initiating the DISCUSSION. It has nothing to do with making the contact. The first part of the SoP covers the contact. It has already been initiated by the Seller. I CAN'T control that. The act of the seller contacting me is fine it doesn't matter where they got my info from. Then if they initiate the discussion about what I do and what I can offer them I can "pitch my wares". That's what this SoP of our CoE is referring to.

I am in no way interfering with an existing contract. I am writing a contract to go into affect after the current contract no longer exist, for whatever reason.

The only way I would be violating the CoE is if I bad mouthed their agent, knowingly put them in the position of possibly paying 2 commissions and/or telling them to cancel their current agreement. I would NEVER do any of these things.

In fact, if I did anything related to their current contract ity would be to talk them into honoring it if I felt the agent was doing a good job and the seller was being unrealistic.

Frank, You get extra credit for reading ALL 190+ comments. Some didn't even read the post...or so it would seem. :)

In many situations we get into there is not a right or wrong, simple answer. Much more needs to be understood than black and white. Many key factors in this situation.Any one of them not being completed could make it unethical, but if it is from putting your client first, I see no problem with it.

1. The client Phones you!
2. Never say anything negaitve about current agent. We must always be a team
3. The listing should be dated the day after expiration date.
4. I have actually been in this situation, and is is very uncomforatable,and one must take the high road.

What I have a problem with, is that you're taking the listing while the home is already under contract, and you're POST-DATING the new contract - therefore, making it look like you took the listing AFTER the expiration of the first listing.

I totally agree that if the seller calls you, then you talk to the seller, and you discuss listing the property in future.  Nothing wrong with that, however .... if you were to take a listing here, while the home is under contract already, and you were to post date that new contract, that contract would be invalid.  It is only valid, when it is signed on the date it says it was signed.  It's not valid (nor ethical, nor legal) if you're taking a listing on Sept 18th, and dating it November 1st.

I have been contacted by listed sellers before and have always known that it is o.k. to speak with them, though my practice has been to list it after it expires. I will always decide though, based on who the agent is.

I am confused. In #136 you asked why a seller should have to sit around and wait for their contract to expire. What is stopping them from canceling their contract. I don't know any brokers that would not allow a cancellation of contract from an unhappy seller.

@ Bryant Tutas-Tutas Towne Realty, Inc

Slow down, no prob maybe I wen't into a rant a little too quickly.

I read a couple of the subsequent postings by people that are taking your suggestion to another level altogether by "targeting" and making a habit of "taking over" listings. That would indicate solicitation to me which is a cler violation of the code.

BTW here is a link to the 2nd half of the article 16 COE video that begins with addressing this very topic.

In my previous post I made many valid points by reading into what your saying knowing full well what this kind of practice ends up being when it is habitual. These things don't happen every day and you talk about it as if that is your main core of business. Also the subsequent posts are hinting to blantant violations.

Sure if they contact you first without you first directly or "indirectly" soliciting them you can take a post dated listing.

Now let's examine for a second what entails indirect solicitations...
Example can be giving a seller real estate advice, talking about real estate in general to them ect. for example when showing the property and getting into casual conversation about things like oh... say... (I don't understand why your property hasn't sold yet. Has your agent done this or that. Or by talking about what you would do to market the property which would have worked by now is a clear indirect solicitation example and a more likely common scenario over being the IT person everyone calls when displeased with their current broker)

After all how would you get involved in such conversation without initiating a visit to the seller if not mailing or calling? How did they hear about you and what induced them to call you out of the blue when listed with another broker.You make it sound as if this is a regular practice you engage in.

I understand this can happen, but several times in a short period or often is a stretch to believe there is no hanky panky going on. Just saying that would cause me to raise an eyebrow seeing an agent getting more and more listings that way.

Neal Bloom said:

"I'll go as far as talking to them if they solicit me and I'll fill out the papers as long as they notify me when they fire the other agent"

Why would the seller need to fire their current agent if your taking a listing after it expires is what I ask myself now?

Sheree said http://activerain.com/blogsview/1243756/how-to-list-a-property-that-s-already-listed-#5307402

Which leads me to believe they crossed that line regardless if the seller hates their current agent or not. Especially you'd better be sure you informed them of the contractual issues of owing two commissions if they sign with you to list their property while the other is still listed for sale. Sheree noted they did not know and often don't know when their listing expires? Ah... they do get a copy of their listing agreement, if not from the listing agent as they are suppose to, they will usually get a copy sent to them from the MLS once their copy becomes in their possession. At least they do that in my area. That is not an excuse, you can always find out when a listing expires, at least the seller can.

Lenn Harley wonders why there is an issue saying just "sell the house"

While a novel idea, I'm sure the listing agent thought of that as well. Walking the line without even realizing it. Ethical issues are also in play along with those contractual ones so litely spoken of. What about the dual commission issue owing two listing agencies. Think they'll be happy with you selling the house then? I pose this question to her agreeable followers as well.

I can't get enough of how Jeff Payne can't understand how listing agents can't get over it and just let their listings go. WOW!!!

Robin how exactly do you "work on taking over another listing" especially in cohert with another agent. Would love to hear what's going on in that scenario.

Todd Clark, not really sure what you were getting at about changing contract dates "after" but something about that scenario don't sound too kosher to me.

Jon Sutton misconstrues the comments of a previous poster taking it even further indicating he would advertise and market the listing of another broker. A clear violation of the law and COE.

Candice say's she "does it all the time"

Boy she must be lucky having so many people make initial contact in despiration for her to list their homes. I'm just saying! Sounds like there is something more to it.

Rob Aubrey just makes me shake my head wondering where his moral compass went off course. Hope your advising them about that double commission issue. BTW if your a Realtor, the COE states you are suppose to take a post dated listing if this is the route you choose to follow.

Sandy Childs should be careful, talking to sellers at an open house about their displeasure with the selling agent? Where is the agent during that open house and better yet how did that conversation get started? I heard what you've said about taking the listing after it expires but once again how did that topic come up and why did they call you opposed to the 20 other agents that came to the open house? hmmm...

Geri heirs on the side of caution going the extra mile gets cudos from me. If the listing agent has their chance to try and sell without any interference from others with a vested interest and the seller is still interested in doing business with you and confident with your abilities as opposed to being stuck with a contract signed in desperation when things we'rent looking so good. Go for it. What's the rush, especially when there is time left on the listing? Sounds more like predatory behavior to me to do otherwise. Bravo Geri.

Gabe Sanders brings up a possible issue and you telling the seller NOT to extend a listing is a clear violation of the COE. So how do you take this listing and tell them what to and not to do with regards to their current broker without interfering? You can't.

Cheryl Robinson makes perfectly clear sense to me, I wonder why the others think that ain't the way to go.

Aaron another agent with a moral compass I wouldn't mind working in my office. I'm thinking of new questions as I write this for my agent interview process so I can only select the best agents with a good morals and ethics. I suppose some things can't be taught.

Rob Arnold seem to have his act together as well. If you need to rush to get business, you're probably desperate. He's probably been in the biz for a while. (Actually time in the biz is not a good measure of ones abilities or ethics)

Lorraine & Loretta are two more ethical agents, note the tone and demenour of these agents vs. the others trying to justify their behavior.

I think I'm starting to build my case here just using other contributors words so I don't get stomped all over. So...

Regardless weather another agent thinks they can perform miracles and sell the house because the current agent is so incompetent or convince a seller they can somehow do a better job and sell their property by talking down the abilities of the current listing agent. (hogwash) You know you'll just talk them into lowering the price and your marketing is probably not much better than the next guys. I say this because it rarely is. (Not always, there are some go getters out there.) Anyway you'll list the home in the mls and do the same online and print advertising the other guy does, maybe!

Regardless if the seller contacts you or the other way around, once you find out the property is currently listed with another broker and you become aware of this factor, your walking a thin line of interference with the current agent's relationship. What if they make up and want to extend the listing? What if the listing agent sells it given the chance? What if... What if...

Now you are in the realms of soliciting another brokers client or more accurately interfering with their listing transaction at some level which is just underhanded and sneaky. If the seller contacts you first without no previous contact on your part sure you can take a post dated listing but why would you want to? Are you that desparate? Don't you think they'll list with you later? You do have a contact manager with appointment reminders and follow ups don't ya?

You guys can go and do as you like, I'm not telling you what to do. You can also call it whatever you'd like, saying you "took over" or calling it a "take over" may make it sound more innocent or like a regular corporate sounding term however saying you are "going after" another take over indicates to me that you're soliciting these people and perhaps telling them "you contacted me first right, wink wink". (I may be young but wasn't born yesterday)

I'm not going to lecture you guys anymore on this topic, your all grown up boys and girls but if you need to convince yourself or at least had to at one point in time that it is legal or ethical, most likely it ain't.

FYI
Even if you have the seller sign a piece of paper telling the listing agent they are "Fired", the seller still has a contractual obligation with that agent so you best be warning them of the consequenses of still owing a commission to the original listing agent AND you. It's a novel idea but once again not an original scheme agents haven't tried before.

Be more productive and concentrate on finding your own clients not already working with another agent. Ethics is a real issue in the real estate industry really warranting reform. I'm starting to see that very clearly now. Buyers and sellers are shouting about these issues on trulia.com in their forums and this is the exact reason why. Many realtors are LAZY and would rather waste energy cutting corners rather than putting in an honest days work.

Many people are calling for new education and ethical standards in order to BECOME or continue operating in the real estate industry until they have completed sufficient training such as attorney's or GULP a cosmetologist. Call it a vetting period or just better education of these tyes of issues among other operational how to's rather than sitting through a 75 hour licensing course and taking a test. People are arguing that hair stylist and message therapists need more training in order to be licensed than a realtor does. I am beginning to think they are right.

Holy freakin moly, I hereby nominate Victor's comment as the winner of the "Comment That Should Have Been a Blog Post" Award for 2009. I needed some Raisinets, popcorn and a soda to get through that baby, all 1,841 words of it!

You know what?  Even if it's "legal" or "ethical" in the rules of the MLS it's wrong because it's back stabbing.   I'm referring to the ethics we learned from our parents when we were kids.  We Realtors work very hard to get a listing and to get the house sold for our client.  Your blog only reiterates the feeling of the general public in that Realtors are no better than attorneys.  We are only out for the money.  Realtors with your lack of home grown ethics are those who give us all a bad name.

Thanks to TLW for using the phrase "breaking the law." My favorite saying from Beavis and Butthead. FYI, in Oklahoma is is acceptable.

Victor, My post is 4 very short paragraphs outlining a situation that is covered in our CoE to allow REALTORS(R) to look out for the public and handle their business aggressively if they choose to.

Case example: A seller has been listed with another agent for  4-5 months on a 6 months listing. During this time they have heard form their agent twice. Finally they decide to make some calls. They pick up the local HOA paper and call my ad that has been there every month for 15 years and reach me personally on the third ring (That act alone has probably blown their agent out of the water). They ask me about real estate and I answer their questions.

Then they ask me about their specific property so I ask them for their address and tell them I'll call them back after I do some research. I hang up and pull their property up only to see it is actively listed. I go ahead and prepare an analysis for them. I call back and the first thing out of my mouth is that I noticed they are currently listed and I let them know that I cannot list their property because they are already listed but I will give them the market data and CMA I have put together(this is the 2nd thing they never received from their agent). I get their email address and send it over.

The next day they call wanting me to come over and go over the information....so I do. While there they ask me to list their property. I tell them that since they are already under an agreement I can only take the listing dated start after their current contract expires. We do the paper work and all is well.

That's it. It's not complicated. I have not once said anything about their current agent that was negative and have just taken a listing that is signed for today with the listing period being a date in the future.

I have not walked over any lines. My entire pitch is above board. My contract is legal, at least in Florida, and my actions are ethical. AND...I have given the seller hope.

Then to take it a step further I go back to my office and call the listing agent, who I probably know, and explain to them exactly what went down. More times than not they are excited to be done with a listing they have already abandoned. They too are fine with it and there are no issues.

This is not how I make my living. I make my living listing and selling short sales.

This post was an exercise to start a discussion about ethics and to show REALTORS(R), that may not know, that our CoE is not designed to hinder fair business practices. It also shows that first and foremost we need to be looking out for the public and quit pandering to other agents.

Again you are reading way too much into a short little post. BUT...this is certainly a topic that needed to be discussed as shown by all the differing of opinions.

I will stress again though that everything I have outlined in my post and my subsequent comments is legal (in most states), ethical and completely above board. All of your objections stem from reading more into  my post than what I wrote.

Deborah, Comment #201. Most sellers would never even think that they could cancel a listing agreement. And it is definately not something I would tell them to do as that WOULD be interfering with their contract. I am not there to tell them how to get out of their contract. I am there to tell them how I handle my business. if they ask me about this my only response is to tell them to call their agent and discuss their contract as it has nothing to do with me.

Ohh yea,  I bet your sooo well know buyers are just jumping at the chance to change Realtors...  buy,  why didn't they choose you first??

 What a snake!

Bryant,

I do not have this situation simply because I work with Buyers. I still have a few listings, and it did happen when I lost them, and that's part of life.

I can sure say that I do not see any problem with that, but why do I even need to go there. Read the COE. It is clear. I do not get when in the comments members ask how can you have two signs on the property. I guess some did not understand what you were writing about.

It scares the heck out of me that there are so many ethics out there. And what scares me even more is that there are so many people out there, who do not see it as business, but as religion, and a very restrictive one.

We got our own zealots

And still, coming back to the same point. As far as I understand, the COE training is not for Florida Realtors only. So, how come so many members, who are Realtors, have missed on the whole thing?

Bryant, this is a very interesting post! And the comments are engaging!

Some of the issues that come into my mind when reading agents' comments:

Some have said that houses not are not selling cannot because of merely sales price. I disagree with this. There are other many valid considerations: how the agents handles calls when other agents call on the property, how the agents handles prospective buyers for the property, how the agent networks and what type of community reach they have, how the agent is influential or not influential in leading/guiding their seller, what the seller-agent relationship is like, trust level, communication level/type/quality/rapport etc. Some agents also do a bit more than other agents marketing the property. Some agents have better reputations-- if you treat other agents badly, are impossible or unreasonable in negotiations, backstab, etc, not to mention outright disrespectful or even abusive treatment, then yes, as the listing agent, this affects whether another agent is going to want to bring an offer your way, or even show the property.

If a seller is unhappy with you, it doesn't make sense you'd "blame" the other agent for accepting a post-dated listing, when the problem is you are performing poorly, failing to manage the perception of the work you are doing, or not working to their satisfaction. Some agents know how to be good agents, and some don't. We shouldn't project our anger at ourselves onto other agents when we fail to secure a deal. This business faces failure every day. We can blame others, or we can accept that this is how it is, and pull up our bootstraps and figure out what we can do to change something to increase our statistics of success.

As agents we must manage perception of the work we are doing as well as manage the quality with which we do it. if we fail to manage perception (the seller's perception of our work), then we have failed at an important aspect of our jobs.

How is it right to spite another agent when the seller is unhappy with your work? It is nice enough for a displeased seller not to cancel their contract with that agent right away. Every seller should be told by their current agent that at any point that they are unhappy with their representation that they can cancel their contract. The seller may know right now, today, that they don't wish to relist with their current agent. Why shouldn't they be able to act on it (cancel or relist postdated if they wish)? They can, so who are we as the agents to be a bottleneck and say no?

This is getting viewed from the perspective of the agent, but I think it needs to be recast in the interest of the seller. The only reason I can see for waiting till the listing actually expires is so that the original listing agent doesn't get their ego ruffled (and this is not an "ethics" issue, is it?) It doesn't seem to have much to do with the seller's best interest. What's in the seller's best interest? For all marketing to be ready prior to the first listing expiring, for the property to get as much networking and for their new agent to be able to hit the ground running the moment the postdated listing becomes active, instead of waiting two weeks or a month before all of that would be ready, ads and printing, etc (the delay which inevitably happens when a listing is taken only on the day the old listing expires).

I like the way Victor thinks.

I don't postdate anything.

Sara, You wrote "This is getting viewed from the perspective of the agent, but I think it needs to be recast in the interest of the seller." It usually is. Agents have a tendency to get hung up on what's best for us instead of considering what's best for the public. Almost every dissenting comment on this post is about how this action affects the agents. Very few point out how it harms the seller. The reason is because it doesn't harm the seller. What harms the seller is being abandoned by their agent.

Very interesting comment thread. Maybe I'll send it off to my sellers :)

"Very few point out how it harms the seller. The reason is because it doesn't harm the seller. What harms the seller is being abandoned by their agent."

In North Carolina, we serve as fiduciaries.  Until I am a person's fiduciary, I owe them nothing but honesty and fairness.  And at the point you describe, they have chosen another fiduciary.

Maybe they should have chosen me first?  Maybe they should live with their choice?

As individuals we can't presume to make decisions about the relationships others have.  I have for a very long time believed that you cannot know what really goes on between two other people in a relationship, and I think that includes a fiduciary relationship. 

The Seller benefits from the COE via protection from a shark tank full of agents insidiously whispering how they can be so much better than the current agent, while that existing relationship is still in place.  The COE is an attempt to put order into what some folks see as the Wild Wild West atmosphere some other folks would have prevail.

Just to clarify: I did not insinuate that I thought you or anyone would or should recommend that a seller cancel their current listing. Obviously that would be a direct breach of ethics. What I specifically said is that in #136 you asked why a seller would have to "sit around and wait for their listing to expire." My comment was why would they HAVE to do that? They wouldn't.

I just don't see how you can fill out a listing agreement without talking about price, for one. Just that question alone could be interfering with the current agreement.

It seems like about half of the agents in this forum support your strategies, while the other half do not. I am definitely in the latter group. I prefer to err on the side of caution and would not ever want another Realtor to even THINK I had stepped on their toes. It is an ethics thing to me, because we are bound by the Golden Rule as a principle. I am surprised that you would not care if any of your sellers entertained other Realtors while on your watch (and doing a CMA, in my mind, is stepping way over the line . . . ) What's wrong with just waiting until the listing is officially cancelled or expires?

Ethics isn't just something that is written down on paper, that is just a guide.  Most of us who are "ethical" don't need a list of rules to know when something is wrong, or isn't ethical.  And because you feel the need to quote the code of ethics that tells me that you have interpreted that to mean that being unethical is completly ok.  Most of us who choose to do business in an upfront and honest manner would not need to look at the code of ethics to make sure we are conducting business ethically.

My take...Once a cheater....always a cheater.... That client wouldn't hesitate to do the same thing to you if given the opprotunity!

It is our job as agents to educate our buyers on the laws of agency and to conduct business ethically. If your client understands both sides of this then they wouldn't be going behind your back and post dating a new listing.  When I take a listing, I encourage my clients to tell me if they don't feel I am doing my job or if they are unhappy with me in any way.  I tell them I will be honest with them and that is all I expect in return.

Wow lot's of good stuff.  I've read all the comments, took a while, not sure anyone will even read mine.  I 100% agree with BB.

Victor:

Whether a second commission would be at issue depends very much on local practice/contract language. Oregon contracts make it nearly impossible for two commissions to be an issue.

Deborah, I knew you weren't insuating that. I was just answering the question and expanding on it for others that are reading. We all have to work within our comfort zones. I have no problem taking a post dated listing when the occassion arises because I know beyond a shadow of a doubt that I am not doing it to step on other agents toes.

I'm doing it because the seller needs help and they aren't getting it for whatever reason. The Golden Rule is "Do unto others as you would have them do unto you". I completely agree with that. Like I mentioned if one of my sellers felt the urge to call and hire another agent during my listing period then so be it. It would OBVIOUSLY be because of something I did wrong.

How could me talking about price have anything  to do with the other listing agreement? I'm just dishing out market data. That's my job. I will talk real estate with anyone at any time. I live and breathe it.

Mike, I understand your point. WE are transaction brokers in Florida by default and do not have a fiduciary unless we choose to work that way. Most don't. But based on  what you are saying let me ask you this....first if you did take a post dated listing would your fiduciary start at time of contract OR would it start when the listing kicked in? Is there anything in NC law that would prohibit a seller from having 2 fiduciary relationships at the same time? Not active listings but fiduciaries?

For all: Here's another question for the ones that feel taking a post dated listing is wrong. Do you practice dual agency? if so explain that to me. Explain to me what makes that ethical and filling out listing paper work in advance is not? 

By the way, I wrote this article 3 years ago. Taking post dated listings is very rare now since I mostly deal in short sales. Although I would take one today if given the opportunity.

OK time to shut down.

Great Post!  This IS news to me!  I have always told sellers to just call me back after it expires or they happen to cancel.  I think the idea to get everything except signatures is the next best alternative. 

Amanda, Please. You can't write a post about ethics without quoting the SoP you are writing about. 

Mike, I read yours :) You get an A for reading the entire thread.

BB-- I too have no qualms if the seller calls ME and initiates the contact. You can take it, post date it, and then SELL IT.

This DID just happen to me. I was contacted by someone who said she wanted to list. I was surprised  when I drove up to see another agent's sign on the property. She said, "When this listing expires, I want to list with you." I asked what her present agent had done or not done to make her unwilling to re-list with him and what she thought I might do diifferently. She replied, "He didn't do ANYTHING!"

I can certainly do THAT differently and I don't feel bad...not for one second. "You snooze, you lose!"

In response to Amanda, above, CHEATER??? Who is the cheater? The seller or the new listing agent?

Erica, Maybe I'm the unethical, lying, cut throat, vomit inducing, agent hating, CHEAT. Does that sound about right? The poor consumer doesn't stand a chance in hell out there!!!

"But based on  what you are saying let me ask you this....first if you did take a post dated listing would your fiduciary start at time of contract OR would it start when the listing kicked in?"

I don't post date ANYTHING, so this of course is entirely hypothetical.  And, I have no idea...   It sounds too much like, "Are you still beating your wife," to me...

The Seller is NOT harmed in any way by NOT signing a postdated listing. IMO...  The only reason to do it is for the 2nd listing agent's convenience and protection, that the agent would not have to revisit the seller, and would not have to worry about a 3rd agent coming in to snag the listing.

How long to postdate the agreement for?  What happens if the Seller decides to can his current agent, and is under a post dated agreement?  Is it automatically a pocket listing? (Not a personal question aimed at you, but i think it would be for some people.)

Ethics vs being legal!

I WOULD WANT TO ERR ON THE SIDE OF BEING ETHICAL!

Just my own personal opinion~

Doing Real Estate in California where everyone is "sue happy" would probably deter me from thinking too far outside the box~

Ethics vs being legal!

I WOULD WANT TO ERR ON THE SIDE OF BEING ETHICAL!

Just my own personal opinion~

Doing Real Estate in California where everyone is "sue happy" would probably deter me from thinking too far outside the box~

I've taken listings this way. If the seller initiates the call and is shopping for their next Realtor, I'm going to do all I can to make sure I'm that next Realtor.

I have also been in a similar situation and as long as the contact was made be the homeowner and not the agent and as long as the first agent is not being criticized by the new agent, there is nothing unethical about the situation.  I would certainly discuss it with my broker before going over for the appointment. At the appointment I would ask a lot of questions and I would listen a great deal because like a cheating husband, if they did it to their first wife, don't be surprised if they do it to you, too.  (Ok, same holds true for cheating wives).  It may be that after listening to the seller, I may not want the listing or feel that I could help the seller.

The truth is, even if it is ok with the COE, if it's not ok with your personal ethics, then don't do it!

Carol & Vince (comment #150), there are quite a few ways the seller might call on a particular Realtor: perhaps the Realtor had initially interviewed with the seller for the initial listing contract; maybe the seller called the second brokerage because of its reputation and the agent was on floortime.  There should be no assumption that the agent encouraged the seller to call him in any way.

All the dissenting comments lead me to wonder if these agents would contact a "withdrawn" (not released) seller and post date a contract that might come from it.

TLW, you must be splitting a gut from laughing.

ALL IS FAIR IN LOVE, WAR and REAL ESTATE.  If that agent wasn't able to use their knowledge, skills and expertise to get the price down where to it should have beenbe, or market the property with full force, or to satisfy them with regular contact and feedback, then so be it.  Sellers deserve the best.  As I see it in this market (or any , really), we are rescuing people from agents that don't have the ability or finesse to get the job done.   Or sometimes they don't really care.  They are just about the numbers. 

It's not about doing something "to" someone, or their agent, it's about helping the home owner.  We've all lost some and won some.  If you can't hack it, then you're in the wrong business!

~  Julia

I was getting my hair done and my hairdresser's next appt arrived. She saw my realtor bodge and said "Oh, you're a realtor?  Come sell my house for me, please!"  As we talked I learned her home was listed, and would be expiring in 6 weeks. I asked about her home and discovered I had a client who might want her home (it was a mother/daughter and I had just acquired this buyer a day earlier).  I said I would call to show the property.  I did so, but my clients wanted a more updated home.

The seller then got my number from our heirdresser and called saying she wanted a new realtor.  I explained I would meet with her after her current llisting expired.  She agreed.  I called her the day after the listing expired and went to see her that evening.  She said her current agent brought a couple in the day before (the expiration date) and asked if she should wait to see what happened with that couple.  I said yes. 

I called her a few days later and she said her current agent had not contacted her yet.  I suggested she call the current agent and find out whether the couple she'd brought in was going to make an offer.  Then I waited another 2 days.  The seller said the couple was not interested, BUT her current (now former) agent had brought in another couple the day before "who are very intersted."  She had the seller sign a "permission to show" form since the house was no longer listed. and added a hand-written note saying the listing was extended through that day.

Lomg story short, the property stayed off the market for 30 days after the expriation of the listing.  Ultimately I listed and sold it (took a couple more months because serious stageing and a price reduction was needed).  

Hey there. Thanks for the info Bryant.  When I first heard of this (years ago) I was shocked. However, it has never happened to me...so I don't mind at all. If we work hard and smart, then this will never happen.

Bryant, It is amazing to me how some of the agents responding to this blog see anything illegal, unethical, or in any way wrong with us lisitng a property in the manner you and I and others are doing.  If they want to see it is a problem, let them go ahead.  That is their problem, really.  We ar not backstabbing anything.  The seller was already going to list it with somebody else, why not me?

I've read a few comments related to "postdating".  I believe the start date of the listing contract needs to be after the current listing expires, but it can be signed and dated during the previous listing period.

I recently took a listing this way.  The previous listing agent was not returning calls or emails to the client.  (The client wanted to know why after 5 months and several promises there was still only picture of her house on the mls.)  The client finally called the broker and instead of just withdrawing the listing, they put the property in "temporary off the market" status.  It had to sit "off the market" for about 3 more weeks until their listing agreement expired.

re:comment #57, There is no such thing as "having a listing stolen from me while in the midst of moving my license from one broker to another" 

Technically, if the listing was originally at your now "former" broker, it's owned by that brokerage. If you encouraged the seller to terminate their agreement with your former brokerage until you could get settled at your new brokerage and re-list, you've violated the code. 

If while it was in limbo, you lost it to another brokerage (agent) because it was 'available' it hasn't been "stolen" you lost it.  And yes, that's a "but that is a wholle other set of circumstances..."

Yes, that kind of stuff goes on all the time... but, is it right? And, if you are "wronged", while doing something wrong, how wrong can it really be?

Interesting, we have always requested that they wait until the actual listing expires. Thanks for posting the citation from the Realtor code of ethics also.

Marie...

I am. This crap cracks me up :)

It also helps me to figure who we will NOT be sending referrals to :)

TLW...ROAR!

A little bit of a twist to this...  Every so often I am contacted directly by the sellers of a home for feedback after I've shown their home to buyers.  (In Michigan it is customary to leave your card at the home you have shown.  In fact, if you don't leave a card expect to get a phone call from the listing agent "Were you there??")

When that call comes in I always tell the sellers that I represent the buyers and will call their agent to give him/her feedback.  I do it immediately, so that the sellers can call the agent and ask what I had to say. 

2 times in the last year a seller has mentioned to me "I don't know what we're doing wrong..." and wanted to chat about what it would take for their home to sell.  Again, I reiterate that I work for the buyers, and that they should insist on a sit down with their agent and his/her broker to go over their marketing plan and ask specific questions then.

BB, I hate the feeling I get in the pit of my stomach when I get these calls from the sellers directly.  I always feel that if a listing agent did their job the sellers would never have to pick up the phone and call me after a showing.  You are dead on when you say that the sellers you have talked with have the No Communication as their #1 complaint.

People..talk to your brokers.  If it's ok with your broker to talk to a seller if they initiated contact with you then go for it.  The sellers are the ones suffering by this lack of communication.

Kris, Did you just do over to the dark side and imply that this is about sellers and not agents ? :) Good  for you.

Thanks for the response Mike. I was thinking about that fiduciary thing in my sleep last night! Sara Wasburn's comment is an excellent explanation of why a seller may benefit from a post dated listing. It gives the new agent a head start with putting together marketing. This could be very important if print ads are involved that have timelines that may require a 30 day period to get the ad out there.

This has been a very good comment thread. Thanks to everyone that participated. Here's a little outline that may help when faced with this situation. Post dated listings.......

1. Controversial
2. Ethical according to our NAR CoE. But if it is outside YOUR own comfort zone then by all means don't do it.
3. Legal in most States. Illegal in Kentucky 
4. Need to be discussed with your Broker
5. Common in some areas
6. Can give the seller and their new agent some lead time in getting new marketing in order
7. NEVER interfere with the existing contract
8. If you are a REALTOR(R) do NOT solicit sellers that are actively listed
9. If put in this poistion do NOT bad mouth the current agent.

OK that's all I can think of.

"Did you just do over to the dark side and imply that this is about sellers and not agents ?"

Guilty as charged...except I've always been on the dark side (aren't our clients the reason we are in business???)

Bryant,

There's this other little thing I think must be in somebody's comment someplace, and that is while you're taking over the listing, It could actually sell due to your efforts.  And when that happens before the lazy, shiftless slug of an agent - the one who hasn't done squat for all the months his sign is in the ground - is owed a commission - at least if he got an exclusive right to sell agreement signed.

You're right about it being legal.  It's just a little tricky, too!

Very interesting post and information here. If someone does have an exclusive listing agreement with another broker, of course broker #2 cannot also sell the house or else the seller owes two listing agents a commission, in addition to the buyer agent. The original post suggests taking the listing which becomes effective upon expiration of the old listing. I have done the same when someone contacts me. That's the key--according to code of ethics, you cannot solicit a listing if the seller is actively listed with another broker.

I write up the listing agreement that it will become effective the day after expiration of the previous listing agreement with XYZ Brokerage, and that seller is to provide written documentation (i.e., copy of their previous listing agreement) that the previous listing has expired (or has been terminated, should the seller elect to do so).

Hi BB and TLW, love your new pic! Well I have not had this happen to myself, that I am aware of; but if it legal and ethical, I see nothing wrong with it.  Love these contraversial posts! I learn much!!  thanks for sharing!

Bryant - Thanks for writing such a tought provoking post.  It has been equally interesting to read all of the comments.  I too agree that the key point is that the seller must contact you.  If they do it is perfectly legal to speak with them about taking the listing as soon as it expires.  Personally I would be most comfortable having everything ready to go as soon as the liting expires and having them sign then although the post dated listing agreement is probably the surest way to ensure that you do get the listing.

Ha Ha, Bryant!  I loved this post.  Are you always wanting to stir things up?

Look, no ethics problem here.  No moral dilemma.  Focus on the needs of the seller and not on the desire of the current listing agent to protect his/her commission (which apparently they are not doing anything to earn it).  Any contract entered into with the seller can always be broken if the listing agent ends up doing their job.

I've had listings given to another agent after mine expired and relisted the next day.  I'm a big boy.  I don't cry about it.

I see nothing wrong with this. As a matter of fact, this just happened to me 2 weeks ago on one of my listings! As we all know, the main reason a listing does not sell is the PRICE!!!!! In this case, I got an offer at the very end of my listing agreement term and tried to convince the seller he should take this offer, $20K under his over-priced asking price.  Well, he took too long to finally agree this was a good deal and both he and I are out of luck because this buyer moved on to another property.

If the seller does not listen to you about listing at the current market and believes that his house is worth so much more than his neighbor's, well, good luck to the new agent.  I won't be surprised if he is calling me up again in 3 months to relist after his current agreement is up.

On the other side, I do have an appointment next Wednesday with a seller who called me up complaining her home has been on the market for a year and wants to try another agent when this loisting expires at the end of the month.  I will meet with her, but will not take the listing unless she is realistic about the list price.  The object is to get it SOLD!

BB - You are so right - there is nothing unethical about this practice. It is also common courtesy (and good business practice) to notify the current agent. If a listing agent cannot communicate the importance of price, condition and availability for showings then they are not doing their job properly. There are many agents who are very good at obtaining a listing but fall short when it comes to marketing and servicing the listing. Eventually, this practice catches up with them in the form of disgruntled clients. As long as you keep the interview (meeting) focused on the listing presentation and the services you will offer (avoid talking about the current agent) then you are doing nothing wrong. This is all predicated on the seller contacting you, of course.

Great posting and they are absolutely correct... even in Texas.  As long as we do not initiate.  However, some agents/brokers will not terminate the listing.   Some will let shortsale homes foreclose and not market the home, pull the sign but not release the listing... evil.

Some agents wrongfully relist without permission.  Some claim an offer is coming to hold the seller hostage again.  I write a termination clause at anytime, at no cost and for any or no reason.  That is the golden rule: treat your clients the way you want treated.  Sure I have lost listings, even after I bring them a full price offer but it just the right way to act... to the public. 

As for bad agents who trick, lie and abuse their client, you deserve to lose the client and your license... even in Texas.

I hope this helps.

Tony

Bryant, to underscore your point, here's the section that precedes your citation. I took it off NAR's website.

•  Standard of Practice 16-4

Realtors^® shall not solicit a listing which is currently listed exclusively with another broker. However, if the listing broker, when asked by the Realtor^®, refuses to disclose the expiration date and nature of such listing; i.e., an exclusive right to sell, an exclusive agency, open listing, or other form of contractual agreement between the listing broker and the client, the Realtor^® may contact the owner to secure such information and may discuss the terms upon which the Realtor^® might take a future listing or, alternatively, may take a listing to become effective upon expiration of any existing exclusive listing. (Amended 1/94)

Do I get an A+ or A+++ for reading all 249 posts? And now I am tired. :-) I know the Code and the state laws (and if I don't, I ask before acting), so there is no problem. (It is amazing how laws may be different in different states.) Plus, that is why we have broker's, right? Not sure, go and ask. I actually did once when my friend said that her friend was not happy her house was not selling - no other comments. Just in case she decided to call me I went to consult withmy broker. I said, "if the house is listed, but the seller is not happy and wants to contact me, that is OK, right?" And my broker said, "yes, as long as THEY contact you, not vice versa". We didn't go any further as the seller never called me and her friend said her house eventually sold. It was an upped end property and it usually takes a longer time to sell those.

Interesting discussion. I am glad a few Realtors learned something.

Oooops, I posted this before I signed-up. Sorry about that. Yep, I am the author of #251 - obviously #250 was posted while I was typing. :-)

Yes, it WOULD tick me off!! I would be upset with myself for not anticipating my Client's needs.

Regarding the issue of 2 signs- What about when you list a house that was previously listed (post dated or not) and the first agent hasn't bothered removing his sign? Would the attitude be just as foul about an old listing agent who has his sign in front of another agent's listing?

Nice post and commentary!  Love to start a controversy, don't you?  It's fun!  Thanks for sharing

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Wow!  I didn't know that was allowed.  Thanks for the information.  I will need to check the laws in my state.

I never forgot something I learned when I was a kid: "It's easier to get forgiveness than to get permission".

Meaning that we all know it's unethical to even indirectly attempt to get a listing from another agent by asking the seller even indirect questions, but how is anyone going to prove that your questions provoked the seller into thinking why the house hasn't sold and cancelled the listing to go with you.

In legalese, you cannot arrest someone for having bad thoughts or intentions, which is almost impossible to prove. They can't arrest me for telling a cop I'm thinking of robbing a bank.

A few years ago I had a seller cancel my listing with him and he went with a national franchise. He beat me to it, because I was going to release him anyway. Totally unreasonable in every way. No lockbox, must schedule an appointment 24hr. in advance and after 5pm only. OH only on Sat. no Sundays (his day of rest). Refused to clean up and de-clutter his home, refused to pay for property and termite inspections. He said if buyer wanted it bad enough, let them pay for it themselves. This was the only listing that I had ever cancelled. Wished the other agent good luck.

As it turned out, it became a short sale after 8 months on the market, and eventually became an REO.

PAM: There is no law in any state that said you can't solicit another listing. It's unethical, but not against the law. The difference is local ethical guidelines vs. law.

In CA the lowest priority is given to complaints about one agent against another. I've heard horror stories where the accusations were outrageous, but nothing was done about it.

Great post doing what a great post should do - demanding to be read and commented on! I believe the moral (no pun intended) of the story including all 257 comments thus far is: KNOW and REFLECT UPON your personal ethics, UNDERSTAND the difference between legal and ethical, READ your state's laws and NAR's COE, ASK your broker if you're not sure about something. And, of course, it would be wonderful if all REALTORS, brokers and licensees behaved legally and ethically at all times - if that were the case the public would have a higher opinion of us all.

I'm not going to read all 256 comments but will say according to the standard of practice it appears you can only list the house AFTER the current listing has expired.  You can set up the cotnract prior to the expiration of the current one only if it doesnt' take effect until the current contract has expired.  In that case yes it would be ethical and legal to take the listing once the previous one has expired.

However I don't think it would be ethical to take the listing and actively market the house before the current listing has expired.  Nor would it be ethical or legal to tell or even insuinuate that they need to cancel the current listing so that you can take it over. 

Great post!...Get the home marketed and priced to sell and agents wouldn't have to worry about there listing expiring and a more aggressive agent getting it!

BB, you've certainly got a variety of opinions don't you?  If I was everyone, I would check out the possibilities in case it happens to you (or could happen) with your local board & broker if you feel your stepping on toes.  I'm just surprised we have a bunch of people that never took a listing right after it expires?  OR gonna expire?

Well with the discount brokers that we have, what if the relisting agent offers a lower commission, do you think the seller would negotiate in good faith if he could save some money? It may be ethical but this is why we won't be considered a profession any time soon.

Wow.  That was one of the most interesting reads I've had on AR in a long time.  Way to go, BB - you cheating, lying, unethical slimeball.  Ooops... I forgot to add "snake" in there.  :)

Kristina...

You also forgot to mention that he's a prick :)

He wears that label proudly :)

P.S. And you Guys thought I wasn't paying attention. Ha :)

TLW...ROAR!

Peter -

I do hope that you are not being serious with your comments.  Unethical behaviour, whilst not "illegal" is distasteful and it gives the industry a black eye.  I can't even believe that you would even think that way!

I hope that you are not some broker's agent in CA.  If you were mine and you expressed something like this in a public forum such as Active Rain, you'd have a big "DEHIRED" stamp on your forehead!

Bryant - I've never had this issue come up, but didn't know that I could actually take the listing.  Now I know exactly what to do.  I look forward to getting my first post-dated listing.

It may be legal, and it may be ethical, but I believe that it is in violation of at least our MLS rules, because you are not to post date a listing. I prefer to have them cancel the first listing then sign mine. That way I avoid the fine, and feel okay with myself.

It may be legal, and it may be ethical, but I believe that it is in violation of at least our MLS rules, because you are not to post date a listing. I prefer to have them cancel the first listing then sign mine. That way I avoid the fine, and feel okay with myself.

This is the greatest post in the history of all real estate post ever! Human nature at its best and worst. Real estate practices at its most hypocritical.

Real estate is a business.

Business is about profit.

You wouldn’t be in real estate if you didn’t want to profit.

Ethics are relative.

Many say it’s unethical to earn a percentage of sale based on sale price!

Almost all of you touting “not ethical” or “I wouldn’t do it” still take that percentage from those homeowners. They said it’s unethical. You think it’s ethical. Now a business practice you don’t agree with is unethical?

***Those thinking this is NOT ethical don’t realize how you are being “unethicated” against with your everyday common needs. You play right into many unethical business practices with living habits by companies you can’t live without.***

Nobody is looking at the big picture anymore.

We're all trying to justify our beliefs saying my puzzle piece is right and your piece doesn't belong ... yet every piece forms the big picture, interlocked together to make a united and awesome display.  It's about the completed picture, not the individual piece.

Wow, I'm reading this over a year after you originally posted because your brain was picked clean and gave me a page of listing presentation links to read in the meantime. Boy have I've been entertained.

I knew of post-dating placement on the MLS, but had no idea you could post-date a listing while a seller was already under contract because of signature date.  It has simply never came up and I've heard no discussion of it during meetings or watercooler talk. 

I of course have had to hunt down AWOL listing agents to sign Listing Cancellation Agreements before.  Unbelievable...I get more referrals from AWOL agents.

Hi Andi. I see you are taking the Broker Bryant Blog tour!! As you can see this article created quite the stir. The seller's signature does not need to be post dated. Just the start date for the listing. The start date for the listing is when the property goes into the MLS. I have done this many times. It works like a charm.

Question; if an agent saturates an area with their marketing materials and is contacted by a homeowner who received their mailing but, has an active listing agreement with another agent could it be considered the agent made 'initial contact' through their direct marketing??