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  Featured Author 
Lights!  Cameras!
  Anti-Trust Violations? 

Note: Carmel was aTeleclass Presenter  on April 3, 2006 Carmel Streater

Carmel Streater

 

It�s your word against theirs when sellers accuse you of an antitrust law violation, isn�t it?  Maybe it is, and maybe it�s not.  It absolutely is not if the sellers have captured your entire listing presentation on a hidden video camera.  If you think that a video made without the permission or knowledge of all parties is inadmissible evidence in court, think again.  It is admissible and, when it exists, it can (and usually will) be used to prove sellers� claims of antitrust violations.

Just so we are all on the same page, remember that the duty of confidentiality is one owed by the real estate licensee to the consumer.  The duty is not reciprocal.  If the consumer chooses to make public the details of conversations concerning antitrust matters between him/her and a real estate licensee, he may do so without violating any obligation as long as the conversation is truthfully reported. 

Enter the pin-point sized video camera with sound.

One of the terrifying aspects of doing business in the Information Age is the absolute ease with which accurate evidence can be gathered to support accusations of wrong doing.  In the recent past, the cost of the pint-sized video cameras used for covert surveillance along with the technical skills required to use them prevented the average person from buying them.  Individuals who were sufficiently motivated and who had the cash seldom had the technical expertise to use them successfully.  In the present, both problems have been solved by falling costs and greater user friendliness of these electronic gadgets.

This means that it is possible for an unsuspecting real estate licensee to walk into what he/she believes will be a routine listing presentation and leave an hour later with no listing and no idea that the video is about to hit the fan.  By the way, this will not be a problem for real estate licensees who are not violators of  antitrust (or other) laws.

The precise moment when the real estate licensee enters the antitrust danger zone is immediately after the video savvy seller utters the question �Why should I pay you seven percent to sell my property when XYZ Realty will list it for four percent?�  The response made by the real estate salesperson to this question will determine whether there is an actionable antitrust case.  Brokers who are reading this should, if they are not, be sweating bullets.  The number of the bullets should roughly be in proportion to the number of salespersons associated with his/her brokerage.

The fee/commission question is being asked more and more often as the public becomes more computer-oriented and has access to listing information previously reserved for members of Multiple Listing Services.  Sellers with computer skills frequently know precisely what their property is worth before talking to the first licensee. Some are also better informed than the licensees about the location, price, condition and financing of sold and active comparable properties. 

Since consumers consider pricing the property to be a valuable part of the selling service package, some feel they deserve a fee discount for having performed it themselves.  Other sellers just want to pay the least amount they can to get the property sold.  Both types of sellers are intensely interested in negotiating the fee they will pay for selling their property.  The right of the consumer to negotiate fees is the crux of the antitrust question for real estate licensees.

Some brokers are not sweating bullets because they hold inaccurate beliefs. 
  

1.

Inaccurate Broker Belief Number One is they will never be so unlucky as to have one of their salespersons videoed making a listing presentation. 


 

  
Playing the odds works with horse races, but the odds on predicting human behavior are short and getting shorter.  It�s almost impossible to read a newspaper or listen to a newscast without learning of horrible acts being committed by individuals copying their favorite movie, television show or computer game.  Wake up, brokers!  It can happen to your sales associate, and when it does you can be fairly certain it will also happen to you.
  

2.

Inaccurate Broker Belief Number Two is that it will be possible to negotiate or litigate your way out of such an obvious entrapment. 

  
The courts have not found videoing a listing presentation to be entrapment and they do not seem likely to change their minds any time soon.  Videoing a listing presentation is unlikely to be the action of a seller who anticipates enjoying the salesperson�s performance so much he will want to see it replayed over and over.  It is much more likely to be the action of someone with an ax to grind, and who is not looking for much of an ax-sharpening challenge.
  

3.

Inaccurate Broker Belief Number Three is that the US Attorney will be too busy prosecuting gangsters, crooked politicians and such to devote time and energy to cracking down on such a peanuts matter. 

  
They�re not that busy, folks, and they really do like a chance at an easy win.
  

4.

The Ultimate Inaccurate Broker Fantasy is that sales associates who have not received training in the lawful way to answer the fee/commission question will somehow respond to it in a fashion that will bring to mind Harvard-educated attorneys who practice their craft in Philadelphia. 

  
That seldom happens, but a broker can dream.  Only one activity will ensure that the majority of salespersons will answer the fee question correctly, and that activity is a quality antitrust law educational experience.  Quality education in antitrust matters specifically developed for real estate licensees is not thick on the ground, but some is available for those who seek them.

A quality training course for real estate brokers and salespersons must go beyond a mere recitation of the law, although that is a necessity.  The majority of licensees (brokers included) have only a vague idea of what antitrust laws are.  An even larger number fail to see a connection between those laws and real estate sales. 

  
Once the law has been explained, a quality course will deal with the tough material that has to be examined if behavioral changes are to be made.  A good way to approach behavioral changes is to illustrate the offensive behavior.  A better way is to illustrate both the offensive behavior and the lawful behavior that should be substituted for it.

One way to accomplish behavioral change is to show vignettes of unlawful behavior and, with the guidance of a competent instructor, allow class participants to develop scripts for answering the fee/commission question.  This type of learning situation is a far cry from the usual antitrust class taught to real estate sales practitioners that consist of a legal expert droning on and on to a roomful of comatose students. 

Remember that adult students will not be spending their evenings studying material they found boring in the first place.  In fact, they won�t be spending out of classroom time studying even the most riveting material.  They will leave the classroom and return to their real world where they are expected to take care of families and earn a living.  The only shot an instructor has at the real estate licensee student has to be taken during the class period. 

Moving the material into the workplace so the students can see how it impacts their daily life is one of the few teaching techniques that will actually work.  This usually involves a professional instructor who understands the learning process teaching a quality course developed by a professional course developer.  It is never simply a recitation of antitrust laws and orders to avoid breaking them.

The behavioral change brought about by attending an exceptional antitrust course is worth the cost, time and effort to get it organized.  Antitrust is one of the areas where lip service to training may result not only in no gain, but in significant loss.  If you are a salesperson, find yourself a quality course and take it; if you are a broker, seek out quality courses to recommend to your sales associates.  The career you save may be your own.
    

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