“In this world, nothing is certain except death and taxes,” said Benjamin Franklin in 1789. What’s equally certain is you can’t write a rule or a law covering every conceivable situation. You can get close, but not all the way there.  

Our former legal counsel, Brian Taylor, used to say, “Let’s write a rule covering 95 per cent of situations, and then we’ll just deal with the remaining five per cent as they arise.” He said this after a particularly long, excruciating meeting where we’d been discussing agency in all its forms. The group had been getting bogged down on obscure “what if” questions.  

Also certain is our capacity as professional problem-solvers to find a rule work-around or, at least, to spend a lot of time looking for one. Add all the different member business models and the expectations that go with them, and it’s not surprising there isn’t uniform agreement as to who should be at a showing or appointment—the seller or the buyer’s agent. Similar to the “low pricing to get multiple offers” scenario, there isn’t much middle ground to this discussion. 

I’ve written about this before, but it’s been a while, so let’s do a recap.  

When I write my column, I usually think of a title first, then I write the column. For this column, my first title was “That ain’t my job.” But the Franklin quote has more punch (and better grammar), so I went with it instead. There’s enough to write three columns on this subject, ranging from “Who should be there” to “That’s not my job” to “It’s your job if your client says it’s your job.”  What a can of worms. If you’re excitable, I suggest you self-medicate before reading on. 

Today, we’re reviewing Rule 6.02. I hope it’s clear that you must never contact another member’s client directly without the consent of their agent. 

Part (b) was added to this rule a few years back after considerable time spent wordsmithing it to specify who should be at the showing, appointment, and/or inspection.  

There really wasn’t a practicable way to draft a concise rule conceiving, in advance, who ought to be present. Eventually, we settled with this: “someone with a license has to be there; members are professionals and they’re agents and they should be able to work out what’s best for the situation.”  

About five per cent of situations lead to thoughts and conversations like, “I shouldn’t have had to do that. It was the other member’s job. They’re just lazy.”  

Sellers’ agents often expect buyers’ agents to show the property to their buyers. That’s fine. Reasons for this may include, “It’s not my job to show the property to buyers—that’s the buyer agent’s job.” “They should do the work by showing the place if they want to earn a commission.” “It’s better risk management if the buyer’s agent shows the place to the buyer.”  

Some sellers’ agents are reluctant to deal directly with another member’s client, preferring instead to keep things simple. They act for the seller; the other person does all the other stuff. Some say there’s less chance of a miscommunication if the buyer and seller only ever talk to their own agents.  

As an aside, lawyer Brian Taylor says it’s an agent’s job to do something if the client says so unless that something is illegal or the agent has good reason to refuse and is willing to walk away from the relationship if the client insists.  

So, let’s be clear: any licensee from either brokerage can stand in for a member who can’t attend an appointment. It could be the seller’s agent or the buyer’s agent or some other agent who’s been nominated to stand in for the unavailable agent.  

I personally think it’s a bad idea for buyers to be shown a property by the seller’s agent if their own agent isn’t going to be in attendance. Why? Because buyers can blab their personal information to the seller’s agent, perhaps hampering their ability to negotiate the best deal. (Maybe that’s a plus if you’re the seller’s agent. But things can also get uncomfortable and murky if someone else’s agent hears something they wish they hadn’t heard). And they may not even be aware of questions their buyer’s agent would ask, making it riskier for the seller’s agent to show the property to someone else’s client. Why complicate things? Keep it simple. Be there with your client.  

If a seller agent’s position is they don’t want to show other members’ buyers the property without their agent being there, they should get written instructions, preferably on the listing’s Schedule A, with a corresponding note in R/Remarks. Ditto for sellers’ agents who have instructions from their sellers NOT to deal with unrepresented buyers (meaning, “I have instructions not to work with unrepresented buyers. Please hire you own agent—I’m only providing services to the seller.”) 

What do buyers and sellers want? They want a smooth deal. That’s what we want too, except sometimes human nature being what it is, we find it hard to get to “smooth” all the time.  

What does your Professional Conduct Committee expect? Look after your client, which sometimes requires a bit of flexibility and good grace. 

Kim discusses these issues further in the video below: