Wednesday, May 19, 2021

“Update Fairy” is my name for the process that happens when I finally put my iPhone to bed for the night. While I sleep, somewhere, in a fairy-tale castle in the clouds of cyberspace, the Update Fairy waves her magic wand and performs a software/system update, coupled with a warning noted by a little red circle with a white #1 in the middle of “settings.” (Updates on Androids don’t come with that little red circle, but essentially the process is the same, carried out by an Update Fairy from a different castle.)

If you’re a compulsive box-checker or you simply dislike disorderly phone screens, you’ll likely feel an irresistible urge to click “Settings” to deal with the update notification. Once there, you simply click “Update” and (to the nub of today’s subject) then “Agree.” Clicking the all-important agree button gets you the update plus a bonus: the little circle and white #1 (or other notification symbol) disappear.

What could possibly go wrong?  

Remember my column, “They snuck that change in,” I wrote in April, about the problems some members encountered – members who hadn’t, until a day or two later, noticed late changes made to a countered contract of purchase and sale? Some finger-pointing may result and, no doubt, some liability exposure if something really goes wrong.

"A similar risk is attached to clicking that update button on your smartphone. Have you thought about what it actually means? Click it and the notification goes away, but the terms of use you just agreed to have not. If you’re like most people, you probably didn’t read the terms of use. Is that something to worry about?"

If you’re having trouble sleeping, consider reading the terms of service/use for your smartphone. You’ll be asleep in no time at all. Earlier this week, I tried to do just that. After 25 swipes of the screen, I was utterly lost and confused over the dense technical prose I was reading. Does anyone out there other than the lawyers and technical writers who wrote these words actually understand what they say? I doubt it. Yet, we agree to the terms without a second thought, leaving ourselves exposed to who knows what, should the makers of whatever technology we’re using ever decide to enforce their terms of service against us.

Similarly, have you ever read our MLS® system (Paragon’s) terms of use? Every time you log in, you have to click “Agree and Sign In.” Agree to what, you ask? Who knows? It’s all in the fine print, as they say. Ditto for realtor.ca; rebgv.ca, and any other website or system you choose to use. This includes our beloved MLS® system, which is backed up by its own terms of service, namely, the Rules of Cooperation. I know you know about the Rules of Cooperation, and I think most of you are pretty familiar with them and their requirements. But are your clients?

I ask that question because when you list a seller’s property you should explain to them you’re obligated to follow the Rules of Cooperation and the REALTOR® Code. It seems obvious perhaps, but what if your seller gives you a lawful instruction that puts you offside with a rule or MLS® policy—like NOT reporting the sale price when the place is sold? Or, Rule 4.02 and the Direction Regarding Presentation of Offers protocols? What if your seller doesn’t like this protocol, saying for example, “offers on May 20, but if I change my mind I’ll look at an earlier one.” Or, “Oooh, that’s great, an early offer came in. I want to look at it right now.”

If you haven’t explained to your clients that, occasionally, their instructions may put you between a rock and a hard place with the rules, you should. Something’s gotta give, as they say. Either you follow your seller’s lawful instruction and ignore the rule (which I don’t recommend) or you tell your seller you can’t do what they are asking. If your seller insists, I suppose you’d have to end the relationship, leaving you unpaid, which would really rub salt in the wound.

So, I say, explain to your sellers that the MLS® system has a set of rules you must follow—similar to website’s terms of use: If you want to use Facebook, you have to agree to its terms of service. If you want to use the MLS® system, you (and by extension, your clients) should understand those rules have to be followed.

And what about the Update Fairy? She’s alive and well in the form of Board staff like me. Every year or two we get together with staffers from other boards to discuss tweaking the rules, with a nip here and a tuck there. Sometimes an entire facelift is required. But no matter how good the facelift, the bone structure beneath doesn’t change. They’re rules, after all, that’s how they roll.