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.