Why Isn’t the Listing Broker in Violation of Article 3?

ORLANDO – Dear Shannon: I’m a broker with a good size brokerage office and a fair number of sales associates. During our weekly meeting, the topic of unauthorized access to property came up. I remembered you had an article on this point and used it for a teaching opportunity. The article was called, “Why am I in Violation if Everybody Does it?”

One of my associates said the listing broker in that story should also have been in violation of Article 3, as interpreted by Standard of Practice (SOP) 3-9.  Both SOP 1-16 and SOP 3-9 seem nearly identical.  I agree with my associate, and that’s why I’m reaching out.  We think the scenario you described in your previous article, where the listing broker permitted unauthorized access to the seller’s property is also an Article 3 violation as supported by SOP 3-9. Are we correct?  Just Checking

Dear Just Checking: Thank you for reaching out with questions about SOP 1-16 vs. SOP 3-9.  The scenario described in my previous article (where the listing broker allowed unauthorized access to the seller’s property) is a violation of Article 1, as supported by SOP 1-16, but it is NOT a violation of Article 3, as supported by SOP 3-9. 

The language of both SOP 1-16 and 3-9 are similar, but there are notable differences. Consistent application and interpretation of the Code of Ethics is important.  When it comes to unauthorized access to property, the question is whether it’s the listing broker or the buyer’s broker allowing the unauthorized access.  If it’s the listing broker, then it’s a violation of Article 1. If it’s the buyer’s broker, then it’s a violation of Article 3.

Let’s look at the language of SOP 3-9 and then SOP 1-16:

SOP 3-9 states: “REALTORS® shall not provide access to listed property on terms other than those established by the owner or the seller. (Adopted 1/10, Amended 1/23)”  Before it was amended in 2023, SOP 3-9 stated, “REALTORS® shall not provide access to listed property on terms other than those established by the owner or the listing broker. (Adopted 1/10)”

When it said “owner or the listing broker” it was more obvious that this would be referring to the buyer’s broker allowing unauthorized access to property (thus a violation of Article 3), since the listing broker presumably would have been authorizing their own terms regarding access to the property. 

That amendment to SOP 3-9 substituted “seller” in place of “listing broker” in order to reinforce that it is the owner or seller who always determines access terms for their property. 

But this change made the language very similar to SOP 1-16, which states: “REALTORS® shall not access or use, or permit or enable others to access or use, listed or managed property on terms or conditions other than those authorized by the owner or seller. (Adopted 1/12)”

So, if the listing broker is the one allowing unauthorized access to property, how do we know which Article is being violated? 

To determine this, look to the Articles themselves for guidance, remembering that the SOPs flow from the Articles.

Article 3 states: “REALTORS® shall cooperate with other brokers except when cooperation is not in the client’s best interest. The obligation to cooperate does not include the obligation to share commissions, fees, or to otherwise compensate another broker. (Amended 1/95)” And NAR’s Code Comprehension document called Article 1 & Article 3, Unauthorized Access to Property, SOP 1-16 and 3-9 states: A violation of Article 3 as interpreted by Standard of Practice 3-9 would involve a cooperating REALTOR® accessing or allowing access to a property on terms other than those agreed upon by the owner or seller and their listing agent.

Article 3 deals with a Realtor’s ethical duties when cooperating with other brokers. If a buyer’s broker permitted unauthorized access to listed property, then this would be a violation of Article 3, as supported by SOP 3-9 and NOT a violation of Article 1, as supported by SOP 1-16[s1] .

Article 1 states: “When representing a buyer, seller, landlord, tenant, or other client as an agent, REALTORS® pledge themselves to protect and promote the interests of their client. This obligation to the client is primary, but it does not relieve REALTORS[s2] ® of their obligation to treat all parties honestly. When serving a buyer, seller, landlord, tenant or other party in a non-agency capacity, REALTORS® remain obligated to treat all parties honestly. (Amended 1/01)”

Article 1 focuses on protecting and promoting the interests of clients. So, an agent of the seller allowing unauthorized access to their seller’s property would be a violation of Article 1, as supported by SOP 1-16 and NOT a violation of Article 3, as supported by SOP 3-9[s3] .

Consistent application and interpretation of the Code of Ethics is important.  When it comes to unauthorized access to property, ff it’s the listing broker, then it’s a violation of Article 1, if it’s the buyer’s broker, then it’s a violation of Article 3.

For more information, read NAR’s code comprehension resource: Article 1 & Article 3: Unauthorized Access to Property, SOP 1-16 and 3-9. Other laws and rules may apply.

Shannon Allen is an attorney and Florida Realtors Director of Local Association Services

Note: Advice deemed accurate on date of publication

© 2024 Florida Realtors®

 [s1]It goes both ways, so this explanation is important to keep in the article, when it comes to allowing unauthorized access to property, not only is a buyer’s broker in violation of Article 3 as interpreted by SOP 3-9, but also they are NOT in violation of Article 1 as interpreted by SOP 1-16 – appropriate interpretation and application of the code is very important

 [s2]If this formatting comes from the code of ethics and arbitration manual, let’s try to keep it, it’s a trademark thing…

 [s3]This is THE answer to the entire Article’s question – isn’t the listing broker also in violation of Article 3…yes to Article 1, as interpreted by Article 1, but NO, NOT in violation of Article 3, as interpreted by SOP 3-9.