To list or not to list? That is the question.

Home : Blogs : Bryant Tutas Broker/REALTOR(R) Tutas Towne Realty, Inc : Broker Bryant's Real Estate Ramblings

To list or not to list? That is the question.

Do you ever take postdated listings? What I mean is, a potential Seller calls you up and wants to get together and discuss placing their property on the market, the catch is, they are currently listed with another company. What do you do? Well, I'll tell you what I do, I go over and take the listing. Did you know this was perfectly ethical? What you can't do is try to convince them to cancel their existing agreement or bad mouth their current Realtor. Also, you must postdate the listing agreement. But other than those three things, this is an acceptable way to do business. I actually run across this quite often in my business and never hesitate to take the listing.

My feeling on this is that, these Sellers just want to sell their house, if their current situation is not working out for them, then, I am more than happy to give them another option. How do you feel about this? Do you do it? Would it make you angry if I did this on one of your listings?

Well, I've never had it happen on one of my listings but don't think it would bother me at all. I too want my Sellers to sell their house and if for some reason I can't get the job done, I would want them to seek another Realtor's services. Heck I may even make a recommendation to them.

Here's the section in our Code of Ethics that covers this situation.

Standard of Practice 16-6

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)

So, the next time this situation presents itself, go take the listing. Don't feel bad about it, just do it. It's all a part of good business practices and it helps the consumer out. And that really is what it's all about. To list or not to list? That is the question.

Customer Testimonials

Tutas Towne Realty has already successfully negotiated Short Sales with the following Lenders and Investors.

Chase Short Sale,Sun Trust Short Sale, GMAC Short Sale, Wells Fargo Short Sale,Bank of America Short Sale,USA Bank Short Sale,PNC Bank Short Sale,Citi Short Sale,HomeEq Short Sale,Fifth Third Bank Short Sale,ING Direct Short Sale,GreenTree Short Sale,Capital One Short Sale,ASC Short Sale,First Horizon Short Sale,E-Trade Short Sale,Transland Financial Short Sale,US Bank Short Sale,IBM LBPS Short Sale,
Nationstar Short Sale,BAC Florida Short Sale,Real Time Solutions Short Sale,Fannie Mae Short Sale
FHA Short Sale,Selene Finance Short Sale,DTA Solutions LLC Short sale,Flagstar Short Sale,IndyMac Short Sale

******************************************************************
Tutas Towne Realty, Inc handles Florida real estate sales, Florida short sales, Florida strategic short sales, Florida pre-foreclosure sales, Florida foreclosures in Kissimmee Florida Short Sales, Davenport Florida Short Sales, Haines City Florida Short Sales, Poinciana Florida Short Sales, Solivita Florida Short Sales, Orlando Florida Short Sales, Celebration Florida Short Sales, Winderemere Florida Short Sales. Serving all of Polk, Osceola and Orange Counties Florida. Florida Short Sale Broker. Short Sale Florida.

Posted by Bryant Tutas Broker/REALTOR(R) Tutas Towne Realty, Inc on 12/01/2006 04:29 PM

Comments (38)

postdated listing, educational

Generate short URL

38 Comments on To list or not to list? That is the question.

DEC

2006

Reserved for #1 The Lovely Wife...TLW...ROAR!

List It...Baby...List It.

As you know I agree on this. If the Seller is not happy...

It's time for them to say NEXT...

Hubba Bubba...

TLW "The Lovely Wife"...This Is A Good Topic Babe...ROAR!

I also say take it.

If you've done everything possible to help someone sell their house and you've been completely up front with them - you don't have to worry about someone doing this to you.

If THEY contact YOU and you hold to the letter of the COE, you aren't doing anything wrong.

I have done the same. I go visit and take the listing, but just like you said I post date it.

Great blog

I've had the opportunity to take listings like this, and it was because the seller initiated the call and I made sure I saw their listing agreement to make sure the effective date if after their expiration date.

The Code allows for it, the sellers want it......stick to the Code and you're fine.

Ann

This has never happened to me but I have a question; our MLS rules tell us that within 48 hours of a seller signature date it has to get posted to MLS. I get fixated on this. In this situation, before reading your post, I would have taken the listing signed on ____ date, with the disclaimer at the top being a sentence MLS requires: per instructions of the Seller, this listing is not to be entered into MLS until _____ date. Is that not necessary in this case? Just looking to learn!

Carole, I'm not sure of your specific MLS rules but I don't think that rule was designed to prohibit a Realtor from taking a post dated listing. If indeed the rule states this, it needs to be changed. But I think the disclaimer you mentioned is fine. Your office should also have a policy related to this.

You can't solicit another agents listing, but is perfectly permissable for them to contact you. Code of Ethics allows it.

Realtors are fiduciaries of their clients. If you breach that duty, you are to step aside

We had one in our office a little bit ago too. I would bet we'd see more of this if only sellers knew they were allowed to do this. It's THEIR contract too. Before we were married, my wife had a home for sale, which was handled quite poorly by agent #1. Agent #2 got the job done. But my sweetie said she waited to the end of the listing period before seeking another agent. It was a long time ago, but she still fusses about it, and not knowing she could have "speeded up" the whole thing.

Hi Broker Bryant,

We have done it and we don't feel bad about it at all. The sellers have contacted us and we didn't step on any toes.

We can post date a listing as long as the seller agrees to it in writing therefore no problem with the MLS Rules and Regs.

Thanks Jay

Say hi to TLW

Hi David, In Florida we are all presumed to be Transaction Brokers. So we do not have a fiduciary relationship with our customers in most cases. We can of course create a fiduciary by deciding to work as a single agent but most Realtors prefer to remain Transaction Brokers. Still we cannot solicit another Realtors customers unless it is part of general marketing plan.

Bill, I have met with Sellers that were currently listed. 2 days later they call to say they fired their other Realtor. I kind of like it when that happens.

Jay, I knew you were going to say that:) Must be that great mind thing again.

I personally see no harm in it- some of the giants may have a different point of view (ie) any contact of any kind..is taboo. Perhaps it is time to return "the power to the people" (who actually own the house) not all agents are good agents. Choice empowers owners to do something proactive if their agent has dropped the ball. I vote for list it!

I'm in one of those MLS's that require we input within 48-hours of taking the listing but I think the post dating would cover that. I would, of course, prefer that they terminate their relationship with the other broker but would never recommend that!! My manager would probably have a fit if we took a post-dated listing on a home that was already listed.

All of this (including the MLS regs) could easily be covered with a simple letter or note from the seller stating what they want to happen and when; but here again, I would never solicit that! We all get so caught up in rules and regulations, it makes it hard to simply do the right thing so we can get on with what we're supposed to do!

Bryant - thank you. This has never happened to us and would have thought it wan unethical until you pointed it out and brought out The Code of Ethics. Now we will be ready without hesitation, when that opportunity knocks.

Of course you take the listing! As long as the seller initiates the call there is no conflict.

Good job.

Bryant,

That's a new one to me.

The only similar thing I've experience is having someone try to get around my protection period (120 months) and steal my commission. He got away with it, the seller didn't! It cost the seller my 10% and the other guys 6%.

But, try as I may I can't find anything wrong or questionable in your scenario.

Well Done,

Bill

William J Archambault Jr

The Real Estate Investment Institute

http://www.reii.org

Take it BB...as long as they contact you your fine.

Monika

Hmmm...I like this thinking. Kind of like the way I get loan disclosures signed 90 days before the prepayment penalty is up

DEC

2006

As everyone has agreed, you would be foolish NOT to take the listing. We do have rules here regarding getting the proeprty on the MLS within 2 or 3 days. There is an exeption to this rule....If thr Seller signs an agreement to withhold the listing from the MLS, it is okay to do so. In order to protect yourself, have them sign that form. Then all you need to do is fax it to the Board so they have this info on record. After the other listing expires and yours is now Active, you can then add it to the MLS.

I've done it many times. I know that in my state, you can actully have the same property listed by two different agents at the same time. However, if the property sells through one of them, the seller owes both agents a commission! I always post date them though.

Allen

Of course it's ok when the Seller contacts you. If the listing dates are postdated there should be no problem with the 48 hour rule. If you list a property and it won't be put into the MLS for 5 days, let's say, for you to get all your marketing ready, have the Seller sign that this is what he wants to happen. After all, the Seller's the boss.

Bryant, Your post is a perfect example of how newbie agents and unsuccessful agents can learn about the business. How many agents out there didn't know this? I would guess alot but being members of AR, and reading Your Blog will make them more aware and better business men/women.

I would absolutely take the listing - no question. Broker Bryant is right on target with the COE quote. Also - as pointed out by several others - the Sellers written instructions trump any timing rules of the MLS.

The question this then obviously raises is can you ever, under the COE, contact another REALTORS client to discuss taking their listing after the current listing expires? My understanding was "yes" this was permissable. Otherwise the client might never have exposure to alternative listing agents but for searching them out in the yellow pages (if they couldn't call on the client). Here's a case where it's particularly relevant: exclusive agency, but not exclusive right to sell, where the contact person in the MLS is the seller, not the listing agent.

While ethically I would never encourage (or even suggest) a client to cancel an in-place (unexpired) agreement, I have personally only used another REALTOR myself twice (other than as co-brokers managing deals around the country) - AND I FIRED BOTH OF THEM EARLY (I was that unhappy with both)!

How does the COE apply if the in-place agent isn't a REALTOR?

Gabriel, You can not intentionally solicit another Realtor's listings. However, they dio nat have to excluded if you are doing a general mailer or other type solicitation, as long as they are not singled out: Gabriel, even though the other other Agent may not be a Realtor we are still bound by the code. IMO

Article 16 does not preclude REALTORS^® from making general announcements to prospects describing their services and the terms of their availability even though some recipients may have entered into agency agreements or other exclusive relationships with another REALTOR^®. A general telephone canvass, general mailing or distribution addressed to all prospects in a given geographical area or in a given profession, business, club, or organization, or other classification or group is deemed "general" for purposes of this standard. (Amended 1/04)
Article 16 is intended to recognize as unethical two basic types of solicitations:

First, telephone or personal solicitations of property owners who have been identified by a real estate sign, multiple listing compilation, or other information service as having exclusively listed their property with another REALTOR^®; and

Second, mail or other forms of written solicitations of prospects whose properties are exclusively listed with another REALTOR^® when such solicitations are not part of a general mailing but are directed specifically to property owners identified through compilations of current listings, "for sale" or "for rent" signs, or other sources of information required by Article 3 and Multiple Listing Service rules to be made available to other REALTORS^® under offers of subagency or cooperation. (Amended 1/04)

Standard of Practice 16-3

Article 16 does not preclude REALTORS^® from contacting the client of another broker for the purpose of offering to provide, or entering into a contract to provide, a different type of real estate service unrelated to the type of service currently being provided (e.g., property management as opposed to brokerage) or from offering the same type of service for property not subject to other brokers' exclusive agreements. However, information received through a Multiple Listing Service or any other offer of cooperation may not be used to target clients of other REALTORS^® to whom such offers to provide services may be made. (Amended 1/04)

I thought it quite suspect when I've noticed a particular agent who has gotten exclusive right to sell listings for several properties shortly after they were first listed with another agent under exclusive agency listings. While the contract may be different, clearly it is the same service (selling the property) and therefore in violation of COE 16-3, assuming there was a deliberate solicitation of that business, which I inferred.

I thought I remembered the COE to extend beyond interaction with other REALTORS, and I'm glad that is confirmed.

Bryant, alias Brutus & Bubba

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.

I would be very careful in taking this on since there are cases where the Listing Broker has maintained that the seller signed an legal agreement for a period of time and they hold the seller to that timeline meaning that the new agent who isn't aware, suddenly finds that they do not get to keep the commission. It may appear black and white but it is not always what it seems.

Now, does that mean that I would hold a client hostage, if I had one, that wanted out of a contractual agreement with me? Obsolutely not...you don't want me, I don't want you. But, not all Brokers feel the same nor do they conduct their business the same.

I tend to wait and get all the documentation as proof that the listing is either expired or withdrawn with no holds since I would like to keep my commission. I like to cover my "butt" so to speak.

As far as MLS...in CA there is a form to be signed by the seller that says they do not wish to be placed in MLS but now there is another ruling that clearly states that if you take a listing, and that is not placed in MLS, you may not place a sign or do any advertising until such time as the property is actually ready. I think this would have a direct impact on whether or not taking the listing would be of any consequence other than to know that you got the listing over someone else. The interesting part is that when you finally got around to actually placing it into MLS, the days would be counted from the actual day of the listing.

Now, in terms of post dating....since it is against the law to post date a check...I don't believe that you can post date a contract. This would be deceptive at the very least and could come back to bite you.

Doing things right is usually the best way all the way around.

Gena, There is absolutely nothing wrong with post dating a listing agreement. Either legally or ethically. The COE is quite clear on this. It is not a grey area. However, I would never suggest to a seller that they cancel their current agreement. A post dated contract is not deceptive in any way. A contract is between the two parties involved and can be written any way they choose. A check is a whole different ball game.

But anyway, I wouldn't do this if I weren't comfortable with it. Me, I have no problem with it at all.

I don't think one of my sellers will call another agent and ask them to list it. But if they do, please come take it away from me if you can get it. I do six month listings and include a provision that my seller can cancel with me at any time with 24 hour written notice. I've never had one cancel. The cancellation motivates me to provide the best possible service and my clients appreciate it.

Steve, I agree. I don't think any of my Sellers would ever call another Realtor. But if they did, I wouldn't want to continue working with them anyway. I too let my sellers know they can fire me anytime they want with no cost and no hard feelings. Life is to short to do it any other way.

DEC

2006

Our team goes one step further in this situation. We have a 'Notice of Non Solicitation' form that confirms that the seller initiated contact with us.

We also network with top agents from other companies. In the rare situation that one of our sellers is not satisfied and wants to change agents, this gives us an opportunity for a referral fee to recover some of our marketing expenses.

Before I took the listing I would try to find the reason it hasn't sold and have a good feeling that I could correct the problem. If it's listed correctly in the MLS with good pictures and descriptions and it has gotten a fair amount of showings it usually means one of two things. The condition is bad or the pricing is bad. If the sellers aren't willing to adjust either one I wouldn't bother with it. If they tell me that their current agent is telling them to reduce the price, I'll tell them they have a very smart agent(if that's what I think the solution is). To me, helping the consumer out is being totally honest about what it will take to get their home sold.

DEC

2006

Tim, in this case it was definitely price. The reason they had not reduced is because they never heard from their Realtor. The only time she ever called was to ask for a reduction every 30 days. The Realtor made the mistake of not having constant communication with their seller. She did not build trust. If she would have had better communication skills she probably would have been able to get the reduction and sell the house. It's a mistake a lot of Realtors make.

To Gena's concern about not getting the check - in Illinois, by law, a new exclusive agreement automatically cancels any prior agreement's broker protection clause. It's the "former" agent that gets stiffed on the deal as I understand it here.

Gabriel, I believe that is true in all states. Once listed with another Realtor the protection period is null and void.

Bryan,

I can respect that.

Bill

To every one else I got off subject, The edit botton works!

Sorry for the delay in the response...been working!

My only concern here is that there are new realtors and there are some key areas that need to be understood if conducting business as such. First of all, you need to check with your state and see if your state laws confer with all of this and also with your broker that your license hangs with.

Yes, you can post date a contract to begin by a certain date but need to actually sign and date with the current date since anything other than that would be considered unethical. The other key note is that the date for commencement would need to be the day after the listing expired or was cancelled.

Bryant is correct in saying and stressing that you, as a realtor must be very careful not to bad mouth the current listing realtor. This is where, I believe it starts getting sticky. As we all know, there is a saying ... _____ and ____ are liars. I wouldn't want to be part of a situation where I had to defend myself and sometimes what we think a seller says and what is stated are two different things.

The other key thing here is the word expiration...that certainly would be safer than a cancellation unless and until the new listing agent obtained a copy of the cancellation. There are many brokers who will not let go of a listing until its cancellation date.

Just be cautious...and remember that there are caveats to almost everything.

Hi Bill and Gena,

This post is about taking a postdated listing agreement to be in effect after the current listing agreement expires OR after the Seller and their current Realtor has agreed in writing to cancel the current agreement. When a Realtor lists a property that was currently listed with another Realtor, the previous Realtors protection period becomes null and void. But they must be Realtors. This does not apply to non-Realtors.

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)

This is no different than listing a an expired listing except you are doing the paperwork prior to the expiration date and postdating the agreement to take place after the other agreement expires. It would of course depend on your office policy on how to handle this situation.

SEP

2009

Bryant, Thanks for the topic. I have no problem with your scenario. It's legal and ethical. But because it requires a more clear understanding of COE's than some agents might have on the topic it can lead to misunderstanding and potential conflict. I appreciate you bringing it up.

This blog does not allow anonymous comments

Bryant Tutas Broker/REALTOR(R) Tutas Towne Realty, Inc

Poinciana, FL

More about me…

Bryant Tutas-Tutas Towne Realty, Inc

Address: 628 Grand Canal Dr, Poinciana, Fl, 34759

Office Phone: (407) 870-9003

Cell Phone: (407) 873-2747

Email Me

Bryant Tutas

Create Your Badge

Delivered by FeedBurner

Visit Short Sale Superstars

All original, all the time. Broker Bryant's ramblings on Real Estate in Poinciana, Fl

Florida Foreclosures and Short Sales

Buy A Florida Retirement Home
Visit TTRealty Network

Listings

Links

Archives

Find FL real estate agents and Poinciana real estate on ActiveRain.

Disclaimer: ActiveRain Corp. does not necessarily endorse the real estate agents, loan officers and brokers listed on this site. These real estate profiles, blogs and blog entries are provided here as a courtesy to our visitors to help them make an informed decision when buying or selling a house. ActiveRain Corp. takes no responsibility for the content in these profiles, that are written by the members of this community.