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Ethical Dilemmas: Analyzing the Realtor Cooperation Policy

So, the Canadian Real Estate Association will implement the Realtor Cooperation Policy amid seemingly significant disagreement from many in the industry. 

With so much discord around this policy, this is often a clue that we are near the point where the many different interests converge. So, from an ethical standpoint, who are the parties, what are the interests at play, which ones should supersede the others, and why?

In short, who is right, who is wrong and how right and how wrong are they?

NOTE: I have purposely kept my personal opinions out of the discussion (other than a brief comment at the very end) as I am attempting to analyze this from a strictly ethical perspective.

“I see three interested parties: organized real estate, individual real estate agents, and consumers.”

 

The question at hand is how to limit the “coming soon” marketing of listings soon to be on the MLS. Even though I am analyzing this from an ethical perspective, legal duties are so intertwined I don’t see how I can do this without including them fully.

I see three interested parties: organized real estate, individual real estate agents, and consumers, although organized real estate could be further broken down into its local, regional, and national organizations.

So with these interested parties, what are the interests at play?

With organized real estate, their interests seem to be the furtherance of professionalism, putting clients’ interests first (collectively) and protecting the integrity of the MLS system.

With us individual practitioners, I see a couple of diverging interests, protection of clients’ best interests versus our right to choose our own business models.

With clients, I see one major interest—the right to choose how they market their properties. 

I think it is safe to say that all the above interests are valid. The big question is which one (or ones) should be the overriding interest(s), why, and where the rest fit in. Before I do that, there is another issue at play, at which level (local, regional, or national) does the authority to make this decision lie (if indeed it even exists)? From what I can see, this is more of a legislative or procedural issue and less of an ethical issue, so I won’t (and am likely not qualified to) address this issue.

I would say the highest-ranking interest of all the above is the clients’ right to market their properties how they see fit. I say this because of established agency law, competition law, our various provincial and territorial rules and, finally, our Code of Ethics. They all point to the primacy of the client and of our duties thereunder.

If my assumption is correct, the next question is how do the remaining interests rank and, where they conflict, which should rule? Again, for the same reasons, it seems to me that the next highest interest is our right as practitioners to choose our individual business models, followed by the protection of our individual clients’ best interests under our chosen business model. 

 

“I am not sure we have any valid claim to decide what business model is best for consumers as a whole, nor do I feel we are the best body to be making this decision ethically.”

 

The professionalism of the industry and the integrity of the MLS system strike me as the bottom-ranking interests in this hierarchy (and I think it is arguable that existing codes of ethics are sufficient to protect the industry’s professionalism and integrity. Note I am not saying that they always work adequately; I am simply saying they provide the required standards (adequate compliance and enforcement is a whole different kettle of fish).

The one interest I see as problematic is us as an industry protecting clients’ interests collectively; I am not sure we have any valid claim to decide what business model is best for consumers as a whole, nor do I feel we are the best body to be making this decision ethically.

I also question where it is written that an exclusive listing means “a listing whereby the listing agent can only market one-on-one to individual prospects.” What if a fully informed consumer chooses of their own free will to market their property to the marketplace publicly through one agent only? Where does this fit in? Where do we acquire the authority to declare this as an invalid way to market exclusive listings? Many countries operate solely on this model.

Now I admit I do not know how agents have been marketing “coming soon,” but assuming they are not doing it through MLS, I must also question where we as an industry acquire the ability to limit the practice if a fully informed client has chosen to allow their agent to do this. 

Yes, they may possibly receive less than on the open market, but if they choose this option of their own free will, where do we gain the authority to deny this?

 

“I just don’t see our interest in protecting the MLS system as equal to consumers’ rights to choose how to market their properties legally or ethically.”

 

Now if the client has not been fully informed, then clearly, this is a serious issue, but we already have rules and a code of ethics to deal with this. Would it not be enough to create a simple “fully informed” form outlining all the potential costs for the client to initial each item and sign (and perhaps the broker sign as well) before a listing can be marketed as “coming soon?” Or maybe just create a time limit for marketing upcoming MLS listings as “coming soon,” leaving exclusive listings out of the equation?

I clearly see the danger this poses to organized real estate (and our cooperative system in Canada is, in my opinion, a huge benefit to consumers), but it seems to me our interest here is subservient to the client’s right to choose how they market their properties. I am struggling to see how this will survive the first legal challenge. I just don’t see our interest in protecting the MLS system as equal to consumers’ rights to choose how to market their properties legally or ethically.

 

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