You have to watch your step legally every day. But how do you sidestep the legal land mines you might not be aware of? In a session called “Real Estate Karma: Is This Illegal, Unethical or Just Plain Rude?” during NAR NXT, The REALTOR® Experience in Orlando, Fla., real estate attorney Trista Curzydlo posed several scenarios to the audience. What do you think? Are these three situations illegal?
Scenario Number One: Marijuana
The problem: A listing agent learns the seller has a cannabis grow room in the basement. The agent decides the smell might turn off some potential buyers during an open house. The agent borrows his broker’s branded moving van to temporarily move the cannabis out of the home and into the broker’s parking lot.
Is it illegal, unethical or rude? Likely yes, even in the 21 states (and the District of Columbia) where cultivating, possessing and consuming cannabis for personal use is legal or decriminalized. “Very few states have a policy for how you transport the plants,” Curzydlo says. “If you facilitate transport, you could have an issue.” So how should you handle listings where cannabis is present?
- Don’t engage in the unauthorized practice of law by discussing cannabis cultivation, possession, transport or storage.
- Do work with the client to ensure the cannabis is secured in a locked place.
- Do use the MLS to notify other brokers about unavailable areas of the house. But don’t tip off strangers to the fact that there’s a valuable commodity in the listing. If a buyer wants to see the “unavailable room,” note in the remarks that you’ll make arrangements for that.
Scenario Number Two: Hidden Cameras
The problem: A prospective buyer’s agent turns off the seller’s router before showings to disable any Wi-Fi–enabled recording devices, then turns it on again when leaving.
Is it illegal, unethical or rude? It’s rude at the least, Curzydlo said. Turning off the router can wreak havoc on all the interconnected smart devices in a home. In addition, it’s unethical—and potentially illegal—to tamper with a seller’s property. You could, in some cases, be breaking trespass laws.
But could it also be illegal to record buyers during showings? Yes, it can be, though the law handles audio and video separately, Curzydlo said. Video recording typically doesn’t require consent but hinges on an expectation of privacy. For instance, you wouldn’t expect to be filmed while using the bathroom during a showing, Curzydlo said. In some states, legality focuses on whether the video recording is for prurient or salacious purposes.
When it comes to authorizing audio recording, Curzydlo noted there are state-by-state requirements. For instance, most states require that at least one person who’s a party to the conversation give consent; some states require all parties’ consent.
If a seller or seller’s agent surreptitiously records a prospective buyer’s conversation with their agent, the buyer and agent can’t give consent. That raises the question: Will the information recorded give the seller a negotiating advantage? If so, the seller and seller’s agent could be liable for false and deceptive practices under the Federal Trade Commission Act and several state laws.
Seller’s agents should indicate in the MLS listing that the property has recording equipment, and buyers’ agents should coach their clients about what not to say during a showing.
Scenario Number Three: Animals
The problem: A seller who is severely allergic to dogs demands that no animals be allowed inside the home during showings.
Is it illegal, unethical or rude? It’s not illegal, but it can be a tricky situation. “The Americans with Disabilities Act and the Fair Housing Act allow service and support animals to accompany their companions pretty much everywhere,” Curzydlo said. So, it’s important to take reasonable steps to work with individuals who require them, Cruzydlo said. You could offer a video tour, for instance.It’s also difficult to mitigate the effects of the presence of a dog for a seller with a severe allergy. It’s not like a restaurant where you can seat the allergic person far away from the animal. “So, if the sellers can demonstrate that they have a severe allergy that can’t be mitigated, they might be able to deny the animal,” Curzydlo said. A support or service animal could also be removed if it isn’t under the control of the owner or isn’t housebroken.