Update 4:31PM EST March 11, 2013 - I just received word from Laurie Janik, Chief Legal Counsel at the National Association of Realtors that the Lawsuit has been dismissed. I am not sure what has happened but I am thrilled. I want to thank everone for their support.
As real estate agents, most of us have what is called an IDX feed which brings all listings for sale in an area onto our websites. Company websites use the same feed, as does Realtor.com and other big name home for sale search websites.
We as agents have absolutely no control over the listings that are on our websites. The feed comes directly from the Multiple Listings Service (MLS) and you either show all listings, or none.
An agent might have 10 listings, 20 listings, 100 listings, or no listings of their own. Yet all show the same listings on their websites. If there are 13,000 listings in the Tampa area, then if you go to my website you will find all 13,000 listings. If you go to a company website, whether Coldwell Banker, Keller Williams, Remax, Charles Rutenberg Realty, Realtor.com, or any number of websites, you will see the same 13,000 listings in the Tampa area.
When we as agents take a listing, we write up a description that the public will see on all of these websites. We and our broker can be responsible for any violations of rules, regulations, and laws in the listing language. For example Fair Housing Laws have protected groups such as racial, familial status, and more. Most of these laws are common sense.
There are what is called Fair Housing Testers, and these can be government employees, or what is called Independent Fair Housing Testers, which are actually regular citizens. These Fair Housing Testers may call an agent and ask questions to see if the real estate agent is willing to discriminate or break another law. Or they scan through real estate websites to find a listing that has illegal language in it. All real estate agents know they can be sued if they do not obey the law.
I have found an interesting question has arisen. Can a real estate agent who has an MLS feed, be sued for a listing with illegal language in the listing, even if that listing is not that agents? Up until recently I would have said no.
However, last year I had a Federal Lawsuit filed against me for violations of the Fair Housing Act. Apparently, an Independent Fair Housing Tester went to my website, scanned the listings and found one with illegal language in it, then filed a Federal Fair Housing Lawsuit against me.
The lawsuit claims I am the listing agent. I am not, but obviously the Independent Fair Housing Tester believed because all 13,000 plus listings are on my website it must mean they are my listings.
The lawsuit then gives the property address, and I quickly realize that I have never listed a home, or sold a home in that city. So I contact my Broker, and then the company attorney. I send all documentation showing that I have nothing to do with this listing, and forward the actual listing, which shows who the listing agent is.
I am told to ignore the lawsuit and they will handle everything, and will work to get the lawsuit against me dismissed.
It seemed that the lawsuit would be invalid, since the lawsuit says I am the listing agent, but I am not. It says that the wording in my listing, which said "Adults Only, No Children Under 16 Allowed," has caused the Independent Fair Housing Tester pain, suffering and she will have to live through a lifetime of embarrassment. Since it is not my listing, and I never used these words, obviously I am not liable.
Suddenly this week I get a call from the Company Attorney who tells me the lawsuit is being settled, and she will send me the documents for me to sign. So I ask some questions.
So my name has been removed from the lawsuit? No.
There must be something in there clearing me of responsibility? No.
There will be no fee to me, right? Well the attorney fee will be paid by the E&O Insurance Company, and the settlement will be $5,000.
I will not have to pay any of the $5,000 correct? She said you need to call your office to find out if you have to pay a deductible.
So I call my office and they tell me I will be responsible for a $5,000 deductible. How convenient. The settlement is for $5,000 and the amount I will be required to pay is $5,000 all for language in a listing that is not even mine. So I get a $5,000 penalty, but the listing agent gets off without any penalty, or even a violation.
So then I ask, will my name and violation be given to the states real estate commission, or any board or agency? Not sure.
Could I have my license suspended or some other penalty? Not sure.
Doesn't it matter that the information and accusations in the lawsuit are totally false? No.
Wow, it sure does not look good for me.
I have now called our Realtor Association, various legal sources, and many others, and am told that real estate agents can be held liable for anything that appears on their website, even if it is an MLS feed that we have no control over.
I have no plans on paying the $5,000 or signing any agreement that says I am guilty of Federal Discrimination Laws, since I am not guilty of any of the accusations. I will likely be in Federal Court, though with a Federal Lawsuit, my guess this whole process will take a long time.
I have been also told that this or any other Independent Fair Housing Tester may visit my website again, especially since I have already been accused of Federal Fair Housing Violations, and file another lawsuit if they can find another listing that is in violation. They also said all real estate agents can face the same lawsuits. Sounds like a profitable career path, for both the Testers and Attorney's who have no qualm with destroying peoples lives.
So now I have had to remove all listings from my website. Without listings my career will likely be ending soon, especially when you are fighting the federal government. Laws may be written with good intentions, but their unintended consequences can destroy lives and businesses. Guilt or innocence, it just does not matter to these people, and unfortunately, it also does not matter to those who are supposed to be representing us.
I have also written a new post which updates this one and can be read here.
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