Where is the Listing Agent? Your Buyer found the house they want. They have signed the offer and written a check for the escrow deposit. You call the Listing Agent, but he is nowhere to be found. Your calls, text messages, and emails go unanswered. You drive to his office; the door is locked and nobody is there.
The Listing Broker is a one-man office. He has no other agents or employees to contact.
Now what do you do? Can you call the Seller directly?
After exhausting every effort to reach the Listing Agent, can you go directly to the Seller? Would that be a violation of the NAR Code of Ethics? What if you have a Fiduciary to the Buyer? Does that Fiduciary take precedence over the NAR COE?
First, the laws of your state will prevail over the NAR Code of Ethics. For example, the Arizona Department of Real Estate has a "24-hour rule" when the Listing Agent cannot be found (see Arizona Administrative Code Rule R4-28-1102). That rule allows the Selling Broker to go directly to the Seller.
What about my state of Florida? There is nothing specific in Florida Administrative Code 61J2 regarding this topic, nor is there anything in Florida Statutes 475.
I faced this situation recently when working with a Buyer for a Tallahassee house (I could not find the Listing Agent to present the offer from my Buyer). I needed legal advice, in a hurry. I reached out to the attorneys at the Florida Association of Realtors in Orlando.
They told me emphatically, "Do NOT go directly to the Seller. We believe that you could face a violation of the NAR Code of Ethics. You would probably survive an Ethics complaint, but you don't want to take that chance. Rather, have your Buyer contact the Seller... your Buyer can even take the offer to the Seller. From that point, you will be in compliance with NAR COE Standard of Practice 16-13 (the dealing is initiated by the client)."
"What if" my Buyer doesn't want to contact the Seller?
If I have a Fiduciary with that Buyer (if I have a signed Single Agent Relationship pursuant to Florida Statutes 475.278), then I WILL go directly to the Seller. I have a legal obligation to my client, the Buyer. I MUST present their offer!*
- Document, document, document! Keep a written record of the phone calls, text messages, emails, or office visits where you attempted to contact the listing agent.
- You may want to give a "heads-up" to your Board or Association's Ethics Committee that you are contacting a Seller directly, after all efforts to reach the listing agent have failed.
- You may also want to notify your attorney, and seek her or his advice before proceeding.
*I am not advising any Realtor, broker or agent to circumvent a listing agent by going directly to a Seller. If you face this situation, see an attorney for legal advice.